BOSTON PUBLIC LIBRARY
3 9999 06316 480 8 ADOPTION 2002:
THE PRESIDENT'S INITIATIVE ON ADOPTION AND FOSTER CARE
GUIDELINES FOR PUBLIC POLICY AND
STATE LEGISLATION GOVERNING
PERMANENCE FOR CHILDREN
BOSTON
PUBLIC
LIBRARY
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GOVERNMENT DOCUMENTS DEPT
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^%^ Boston, MA 02117 . ,
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^ministration for Children and Families
Administration on Children, Youth and Families
Children's Bureau
June, 1999
ADOPTION 2002:
THE PRESIDENT'S INITIATIVE ON ADOPTION AND FOSTER CARE
GUIDELINES FOR PUBLIC POLICY AND
STATE LEGISLATION GOVERNING
PERMANENCE FOR CHILDREN
Principal Authors:
Donald N. Duquette
University of Michigan Law School
Mark Hardin
National Resource Center on Legal and Court Issues
Carolyn Payne Dean
Project Manager
iiUKtRINTBWDENT OF DOCUMENT
DEPOSITORY
JUL 3 1 2000
BOSTON
PUBLIC
LIBRARY
BOSTON PUBLIC LIBRARY
.GOVERNMEMT nnniMPMTc npp^nTMrrilT
artment of Health and Human Services ■'
ministration for Children and Families
istration on Children, Youth and Families
Children's Bureau
June, 1999
GOVERNMENT DOCUMENTS DEPT.
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DEPARTMENT OF HEALTH & HUMAN SERVICES
PREFACE Administration for Children and Families
Administration on Children, Youth and Families
330 C Street, S.W.
Washington, D.C. 20447
JUN 3 1999
Dear Colleagues,
We are pleased to share with you a new technical assistance tool, entitled
Guidelines for Public Policy and State Legislation Governing Permanence for Children. Building upon
the Children's Bureau's tradition of issuing guidelines and model legislation which predates Sheridan's
1975 publication of "Model Acts for Family Courts and State-Local Children's Programs," the
Guidelines are being disseminated nationally to child welfare agencies. State courts, and national
organizations with a particular interest in children and families.
This document was developed by a cross-disciplinary group of experts in child welfare,
comprised of administrators, lawyers, judges, advocates, and front-line workers. Deliberating for more
than a year, the work group developed these Guidelines which reflect their best thinking about child
welfare policy frameworks and what ought to be.
This has been a period of remarkable legislative and programmatic reform in child welfare
services. The Adoption and Safe Families Act enacted in 1997 provides a new legislative framework
which focuses on safety, permanency, and timeliness of decision-making for children and families. The
enactment of this legislation has reinforced reform activities occurring across the country.
We hope these Guidelines will be used to examine State and local processes and generate
discussions about current and ftiture directions. The release of the Guidelines creates an opportunity to
convene key stakeholders to discuss better approaches to achieve permanency through reunification,
adoption, and other permanency arrangements.
While we have made progress in achieving the goals that we have for children and families, there
is much to be done. No single tool or strategy will get us there. Agencies continue to struggle with
policy, capacity, staffing and caseload issues. This document will not resolve these problems, but will
highlight the relationship between policy and these critical implementation issues. We hope it can also
move us closer to solutions.
Sincerely,
'arol W. Williams, D.S.W.
Associate Commissioner
Administration on Children, Youth and Families
Children's Bureau
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page \
GUIDELINES FOR PUBLIC POLICY AND STATE LEGISLATION
GOVERNING PERMANENCY FOR CHILDREN
EXPERT WORK GROUP
Mr. Richard Acevedo
Indian Child Welfare Act Manager for the State
Office for Children & Families
Oregon Children's Services Division
MaryLee Allen, M.S.W.
Director, Child Welfare & Mental Health
Division
Children's Defense Fund
Hon. Michael J. Anderegg
Judge
Marquette County Family Court
Hon. Janice J. Brice
Chief Judge
31" Judicial District, Juvenile & Domestic
Relations
Ms. Delores Brooks
Executive Director
American Professional Society on Abuse
of Children
Patsy L. Buida, M.S.W.
Foster Care Manager
Texas Dept. of Protective Services
Ms. Emily Buss
Assistant Professor
University of Chicago Law School
Ms. Sandra Campbell-Jackson
Director of Kinship Care Programs
Parents Involved Network of PA
Ms. Ellen W. Carey
Director, Capacity Building Division
Children's Bureau
Administration on Children, Youth and
Families
Mr. Steve Christian
Policy Specialist
National Conference of State Legislatures
Ms. Emily Cooke
Special Assistant to the Associate
Commissioner
Children's Bureau
Administration on Children, Youth and
Families
Howard Davidson, J.D.
Director
ABA Center on Children and the Law
Dixie van de Flier Davis, Ed.D.
Executive Director
The Adoption Exchange
Carolyn Dean, Ed.M
Program Analyst
Commissioner's Office
Administration on Children, Youth and
Families
Ms. Robin Delany-Shabazz
Program Manager
Department of Justice
Office of Juvenile Justice and Delinquency
Programs
Guidelines for Public Policy and State Legislation Governing Permanence for Children
Page ii
Ms. Bernardine Dohrn
Director
Child and Family Justice Center
Northwestern School of Law
Mr. Donald N. Duquette
Legal Consultant, Children's Bureau
Clinical Professor of Law and Director
Child Advocacy Law Clinic
University of Michigan Law School
Hon. Leonard Edwards
Judge
Superior Court of California
Santa Clara County
Ms. Diana English
Office Chief for Research
Children's Administration
Washington State DHHS
Ms. Heitzi Epstein
Child Welfare Project Director
National Association of Child Advocates
Hon. Richard J. FitzGerald
Chief Judge
Jefferson Family Court
Louisville, KY
Ms. Judith B. Gallo
Director, Policy Analysis
New York Office of Children and Family Svcs.
Sylvia Glover, A.A.G., J.D.
Assistant Attorney General
National Association of Attorneys General
Ms. Linda Gibbs
Deputy Commissioner for Management
and Planning
New York Administration for Children's
Services
Ms. Susan Golanka
Director, Human Services Litigation
National Governors' Association
Mr. Miles Golson
Child Welfare Program Specialist
Children's Bureau
Administration on Children, Youth and
Families
Ms. Gail Gordon
Deputy Commissioner & General Counsel
NY State Office of Children & Family Services
Mr. Ulysses B. Hammond
Executive Officer
District of Columbia Courts
Mr. Mark Hardin
Director
National Resource Center on Legal and
Court Issues
Ms. Jann Heffner
Executive Director
The Dave Thomas Foundation for Adoption
Jasmine Henriquez, J.D.
Staff Attorney
National Clearinghouse on Child Abuse and
Neglect Information
Hon. Stephen B. Herrell
Past President
National Council of Juvenile and Family Court
Judges
Joan Heifetz Hollinger, J.D., M.A.
Visiting Professor of Law
University of California-Berkeley
Ms. Tanya Howell
Student Assistant
Children's Bureau
Administration on Children, Youth and
Families
Ms. Ivory Johnson
Deputy Director
County of San Diego Health and Human
Services Agency
Guidelines for Public Policy and State Legislation Governing Permanence for Children
Page iii
Althea R. Stewart Jones, J.D.
Foster Care Court Improvement Project Director
Maryland Administrative Office of the Courts
Hon. Judge Judith Kaye
Chief Judge
New York Court of Appeals
Ms. Brenda Kerr
Adoption Policy Consultant
Virginia Department of Social Services
Ms. Susan Knipps
Deputy Counsel
Office of New York State Chief Judge
Mr. Joe Kroll
Executive Director
North American Council on Adoptable Children
Ann Marie Lancour, J.D.
Legal Training Director
ABA Center on Children and the Law
Mimi Laver, J.D.
Assistant Director for Child Welfare
ABA Center on Children and the Law
Hon. J. Dean Lewis
President, National Council of Juvenile and
Family Court Judges
Mr. Ernesto Loperena
Executive Director
New York Council on Adoptable Children
Ms. Alexandra Lowe
Division of Family Permanency
New York Administration for Children's
Services
Ms. Rita Lowry
Child Welfare Program Specialist
Children's Bureau
Administration on Children, Youth and
Families
Ms. Martha Matthews
Staff Attorney
National Center for Youth Law
Mark T. McDermott, Esq.
Legislative Chairman
American Academy of Adoption Attorneys
Ms. Kathleen McHugh
Director, Division of Policy
Children's Bureau
Administration on Children, Youth and
Families
Ms. Mary Volpa Mentaberry
Director
Permanency Planning for Children Project
National Council of Juvenile and Family Court
Judges
Mr. John Monahan
Principal Deputy Assistant Secretary
Administration on Children, Youth and
Families
Catherine M. Nolan, M.S.W., A.C.S.W.
Director, Office on Child Abuse and Neglect
Children's Bureau, ACYF
Ms. Gail Olezene
Program Manager
Department of Justice
Office of Juvenile Justice and Delinquency
Prevention
Ms. Elizabeth Oppenheim
Manager, AAICAMA
American Public Human Services Association
Mr. Scott Peterson
Program Manager
Department of Justice
Office of Juvenile Justice and Delinquency
Prevention
Guidelines for Public Policy and State Legislation Governing Permanence for Children
Page iv
Mr. William Pierce
President
National Council for Adoption
Ms. Diana M. Pietrowiak
Senior Evaluator
U.S. General Accounting Office
Mr. Michael Piraino
Chief Executive Officer
National Court Appointed Special
Advocates Association
Ms. Kirsten Rasmussen
Policy Associate, Human Services
National Conference of State Legislatures
Hon. Battle R. Robinson
Judge
Family Court of the State of Delaware
Miriam Rollin, J.D.
Policy Representative
National Association of Counsel for Children
Ms. Betsy Rosenbaum
Director
American Public Human Services Association
Catherine Ross, Ph.D., J.D.
Associate Professor of Law
George Washington University Law School
Co-Chair
American Bar Association Steering Committee
on Unmet Legal Needs of Children
Ms. Ellen Soltow
Senior Evaluator
U.S General Accounting Office
Ms. Sheri Steisel
Senior Committee Director
National Conference of State Legislatures
Ms. Cecelia Sudia (retired)
Children's Bureau
Administration on Children, Youth, and
Families
Ann Sullivan, M.S.W.
Adoption Program Director
Child Welfare League of America
Ms. Mary Sullivan
Project Director
National Adoption Information Clearinghouse
Joyce Thomas, R.N., M.P.H., P.N.P.
President/Co-founder
Center for Child Protection & Support
Ms. Marilyn Tucker
Student Intern
Children's Bureau
Administration on Children, Youth and
Families
Mr. Marvin Ventrell
Executive Director
National Association of Counsel for Children
Ms. Katrina Weinig
Senior Counsel
Department of Justice
Office of Policy Development
Carol W. Williams, D.S.W.
Associate Commissioner
Children's Bureau
Administration on Children, Youth and
Families
Hon. Joan Zeldon
Associate Judge
D.C. Superior Court
National Conference of Commissioners on
Uniform State Laws
Guidelines for Public Policy and State Legislation Governing Permanence for Children
PageV
ADOPTION 2002:
THE PRESIDENT'S INITIATIVE ON ADOPTION AND FOSTER CARE
GUIDELINES FOR PUBLIC POLICY AND STATE LEGISLATION
GOVERNING PERMANENCE FOR CHILDREN
TABLE OF CONTENTS
SECTION PAGE NO.
PREFACE i
EXPERT WORK GROUP iii
I. CHAPTER I: INTRODUCTION
Purpose of Guidelines I-l
Adoption 2002: The President's Initiative on Adoption and Foster Care I-l
Permanency for Children 1-3
Legislative Support for Achieving Permanency 1-4
Through the Eyes of the Child 1-7
The Challenge of Diversity 1-9
Our Collective Challenge I- 10
CHAPTER II: OPTIONS FOR LEGAL PERMANENCY
Introduction II- 1
Guidelines and Commentary II-2
General Guidelines II-2
Guidelines for Adoption II-4
Guidelines for Permanent Guardianship II-8
Guidelines for Standby Guardianship 11-14
Guidelines for Planned Long Term Living Arrangements
with a Permanent Family 11-15
CHAPTER III: REASONABLE EFFORTS TO PRESERVE FAMILIES AND ACHIEVE
PERMANENCY FOR CHILDREN
Introduction III-l
Guidelines and Commentary III-2
Additional Questions and Circumstances That States May Want to Consider Ill- 10
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page VI
TABLE OF CONTENTS
(continued)
CHAPTER IV: COURT PROCESS
Introduction IV- 1
Guidelines and Commentary IV- 1
Guidelines for Court Structure and Resources IV-1
Guidelines for Emergency Protection and Investigative Orders lV-7
Guidelines for Preliminary Protective Hearing IV-8
Guidelines for Adjudication IV- 12
Guidelines for Disposition Hearing IV-15
Guidelines for Review Hearings IV-20
Guidelines for Permanency Hearings IV-25
Guidelines for Post-Termination Court Review IV-30
Appeals IV-31
CHAPTER V: NON-ADVERSARIAL CASE RESOLUTION
Introduction V-1
Guidelines and Commentary V-7
CHAPTER VI: TERMINATION OF PARENTAL RIGHTS
Introduction VI- 1
Guidelines and Commentary VI-2
Guidelines for Voluntary Relinquishment VI-2
Guidelines for Termination of Parental Rights Procedures VI-5
Grounds for Termination of Parental Rights: Generally VI-9
Common Grounds For the Termination of Parental Rights VI-10
Additional Grounds That States May Consider VI-24
Guidelines for Determining Whether Termination Will Benefit the Child VI-29
CHAPTER VII: STANDARDS FOR LEGAL REPRESENTATION OF CHILDREN,
PARENTS AND THE CHILD WELFARE AGENCY
Introduction VII- 1
Guidelines and Commentary VII-3
General Guidelines VII-3
Guidelines for Representing Biological Parents (and Legal Guardians) VII-6
Guidelines for Agency Representation VII-9
Guidelines for Representing Children VII-12
Guidelines for the Role of the Child's Wishes
in Determining the Advocate's Goals VII-18
Guidelines for Court Appointed Special Advocates VII-22
APPENDIX: ORGANIZATIONAL RESOURCES
Guidelines for Public Policy and State Legislation (Joverning Permanence for Children Page vii
CHAPTER I: INTRODUCTION
PURPOSE OF GUIDELINES
The Guidelines for Public Policy and State Legislation Governing Permanence for
Children were developed as one of several action steps undertaken by the Federal government in
response to Adoption 2002, President Clinton's Initiative on Adoption and Foster Care. It is a
technical assistance document designed to help States review their own laws and develop statutes
and policies that reflect the best practices in child welfare today. The Guidelines are intended to
assist the States as they focus on critical issues affecting child welfare practice and the courts.
As the Guidelines were being developed. Congress passed the Adoption and Safe
Families Act of 1997 (ASFA), the first major reform of Federal child welfare policy since 1980.
Enactment of this new law and the need for requisite changes in State laws and policy will
continue to generate significant discussions among policy makers, service providers, child
welfare experts, and judicial officers. These Guidelines are designed to support such discussions
by highlighting key issues to explore permanency for children; they can be used to identify
specific questions that need to be addressed and to facilitate clear policy choices to help achieve
permanence for children.
The Guidelines recognize that, apart from Federal funding of public child welfare, the
child protection and foster care system in the United States is primarily governed by State law
and the way that State law is implemented. These Guidelines draw upon the best practices
among the States, and are meant to help States evaluate and modernize their laws that affect
children and families who are having difficulties that require intervention by the child welfare
system. The Guidelines particularly focus on the courts and legal processes involved in
decisions affecting children and families; they were written for a broad audience of stakeholders
in the public policy arena, including State legislators and their staffs, judges, public child welfare
officials, and other State-level policymakers and program managers.
ADOPTION 2002: THE PRESIDENT'S INITIATIVE ON ADOPTION AND FOSTER
CARE
America's foster children spend far too long waiting — deprived of the permanent and
stable homes necessary for their healthy development. In an Executive Memorandum of
December 14, 1996, President Clinton said:
" I am committed to giving the children waiting in our Nation's foster care system what
every child in America deserves — loving parents and a healthy, stable home. The goal
for every child in our Nation's public welfare system is permanence in a safe and stable
home, whether it be returning home, adoption, legal guardianship, or another permanent
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page I- 1
placement. While the great majority of children in foster care will return home, for about
one in five, returning home is not an option, and they will need another home, one that is
caring and safe. These children wait far too long — typically over 3 years, but for many
children much longer — to be placed in permanent homes. Each year State child welfare
agencies secure homes for less than one-third of the children whose goal is adoption or an
alternate permanent plan. I know we can do better."
President Clinton directed Secretary of Health and Human Services, Donna Shalala, to
conduct wide consultations and make specific recommendations for strategies to move children
more quickly from foster care to permanent homes and to double, over the next five years, the
annual number of children who are adopted or permanently placed. On February 14, 1997,
Secretary Shalala issued Adoption 2002: A Response to the Presidential Executive
Memorandum on Adoption, as a blueprint for bipartisan Federal leadership in adoption and
other permanent placements for children in the public child welfare system. Several important
assumptions are articulated in the Adoption 2002 report.
1. Every child deserves a safe and permanent family.
2. Children's health and safety is a paramount concern that must guide all child
welfare services.
3. Children deserve prompt and timely decision-making as to who their permanent
caregivers will be.
4. Permanency planning begins when a child enters foster care; foster care is a
temporary setting.
5. Adoption is one of the pathways to a permanent family.
6. Adoptive families require supports after the child's adoption is legalized.
7. The diversity and strengths of all communities must be tapped.
8. Quality services must be provided as quickly as possible to enable families in
crisis to address problems.
Among the Proposed Action Steps recommended m Adoption 2002 is that of developing
model guidelines for State legislation to advance the goal of giving every child in our nation's
public child welfare system a safe and permanent home. To initiate this project, the Children's
Bureau within the Department of Health and Human Services, together with the Department of
Justice, convened an interdisciplinary Expert Work Group to address these issues.
The Children's Bureau has a history of developing model guidelines for consideration by
the States. In 1922 and again in 1954, the Children's Bureau developed guidance documents
specifically designed to help States improve their specialized courts dealing with children. Once
more, in 1965-66, the Children's Bureau tapped the best national expertise available and
produced Standards for Juvenile and Family Courts, a document for family courts that reflected
a general consensus of the thinking and experience of that interdisciplinary group. This
Guidelines project builds upon that tradition of Federal leadership to provide guidance for the
States.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page 1-2
To assist in this process, recognized leaders in the field of child welfare and related areas
were invited to participate in the interdisciplinary Expert Work Group selected to represent a
variety of opinions and approaches. The group met four times between October 1997 and June
1998, giving content and direction to the drafters of the Guidelines, Don Duquette and Mark
Hardin, on the topics to be covered and the specific issues to be addressed. As a consensus
report, this document does not represent the view of every participant on every issue but, to the
extent possible, significant differences of opinion among the group are discussed. Child welfare
involves many controversial issues. Disagreements among group members are reflected in the
text of the Guidelines itself with the hope that explication of the different views will be helpful
to the States.
In presenting the full scope of our collecfive "best thinking" on current issues in child
welfare law and practice, including the substantive differences among the views held by experts
in the field, the Guidelines should be seen almost literally as " guideposts," identifying ways to
improve the interface between State child welfare agencies and the courts. Yet, clearly, these
Guidelines are not the panacea for a public child welfare system in crisis. Along with adequate
resources for agencies and courts, a statutory and policy framework is a necessary, but not
sufficient, element of a successful formula to reform child welfare. America's children deserve a
child welfare system that includes a stable and sophisticated professional workforce, an effective
service delivery strategy, a caring and supportive community, adequate resources for social
services and courts, and a sound statutory framework that governs State intervention in families
unable to cai-e for their children. Passing laws will not, by itself, cure what ails America's foster
care system, but statutes that reflect the best practices among the States today are an essential
element of that reform effort.
PERMANENCY FOR CHILDREN
" Permanency" is a term of art used throughout the Guidelines and is defined here.
" Permanency" means that a child has a safe, stable, custodial environment in which to grow up,
and a life-long relationship with a nurturing caregiver. The concept of permanency has assumed
a central place in American child welfare law and policy because permanency establishes the
foundation for a child's healthy development. The basic needs of children include safety and
protection; a sense of identity; validation of themselves as important and valued persons; stability
and continuity of caregivers; an opportunity to learn ana grow cognitively, physically and
emotionally; and a protected custodial environment that is legally secure. Permanency, as
epitomized by a safe, stable relationship with a nurturing caregiver, allows these basic needs to
be met.
Permanency can be achieved in a number of ways. A child can be protected within his or
her own home, or through reunification with his rehabilitated parents. Extended family can
provide short or long term legally sanctioned care for the youngster through adoption or
guardianship. Or, alternatively, a child can be adopted by non-relatives. Adoption is generally
considered the optimal form of permanence when the biological parents are unable to provide a
safe, stable, and nurturing home. However achieved, permanency is a cornerstone of American
child welfare policy.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page 1-3
LEGISLATIVE SUPPORTS FOR ACHIEVING PERMANENCY
The Federal framework setting direction and parameters for the operation of State and
local child welfare agencies and courts was established almost 20 years ago with passage of
Public Law (P.L.) 96-272, the Adoption Assistance and Child Welfare Act of 1980 . This was the
first Federal statute to discourage excessive reliance on foster care placement and promote
greater use of services to assist and rehabilitate families, preventing out of home placements. It
introduced the concept of permanency planning and incorporated specified time frames for
decision making for children and families. These were significant changes in the legislative
history of child welfare services, but, as new and more complex social problems emerged and
foster care caseloads increased, additional programs and alternative approaches were required.
Consequently, other legislative initiatives to support or promote permanency were introduced.
These included the Family Preservation and Family Support Services Program (FPFS)
established in 1993 and amended in 1997, the MuUiethnic Placement Act of 1994 (MEPA) with
its 1996 Interethnic Placement Provisions (lEP), and the Adoption and Safe Families Act
(ASFA) enacted in November of 1997.
The legislation that established the Family Preservation and Family Support Services
Program (P.L. 103-66) focused primarily on the front-end of the child welfare system by
providing additional funding for preventive services and crisis services for children and families
at risk. Implementation required active involvement of a broad community of stakeholders to
focus on needs and services for children and families. The law also created the Court
Improvement Program, and provided resources to State courts for the first time, to ensure that
courts were responding to the needs of children in foster care. The Court Improvement Program
required State Courts to conduct systematic needs assessments and plan necessary reforms. In
effect, this legislation highlighted family services and prevention as a national priority, and
provided opportunities for State agencies and Courts to plan child welfare reforms.
In response to major concerns about the extended length of stay and poor outcomes for
minority children and the prevalence of racial preference in placement, the Congress enacted the
Multiethnic Placement Act (MEPA). (P.L. 103-382) and the Interethnic Placement Provisions
(lEP), (P.L. 104-188). Enacted in 1994, MEPA outlawed discriminatory practices, and, in 1996,
the lEP clarified the original legislation and created sanctions for States and agencies which fail
to comply with the Act. MEPA forbids the delay or denial of a foster or adoptive placement
solely on the basis of the race, color or national origin of the prospective foster parent, adoptive
parent or the child involved. It also compels States to make diligent efforts to recruit and retain
foster and adoptive families that reflect the racial and ethnic diversity of the children for whom
homes are needed. With the Interethnic Placement Provisions, Congress subsequently clarified
MEPA and repealed that section of the law containing "permissible consideration" language
which could have been used to obfuscate the law's intent. The amendment also dictates a penalty
structure and corrective action planning for any State or private agency which receives Federal
funds that violates the amended section of the Act. These two statutes are noteworthy for child
welfare because they not only required changes in laws and policy; they also required changes in
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page 1-4
child welfare practice to facilitate more timely placement of children into foster and adoptive
homes.
However, it is the recently authorized Adoption and Safe Families Act of 1997 (P.L. 105-
89), enacted as an amendment to titles IV-B and IV-E, which most comprehensively addresses
critical permanency issues in child welfare and the law. The law was a bipartisan action to ensure
that children's safety would be the paramount concern of all child welfare decision-making and
to promote the adoption of children who cannot return safely to their own homes. The law has
two overarching goals: the first is to move children who are stranded in the child welfare system
with no place to go; the second is to change the experience of children who are entering the
system today. Five key principles guide the implementation of the law. Evolving from some of
the same important assumptions underlying the Adoption 2002 report, these key principles were
developed in consultation with the broad community of practitioners, administrators, child
advocates, attorneys, judges, and other professionals working with families through public and
private agencies and State and local courts. All of the following principles are embodied in
specific provisions mandated by ASFA:
Safety is the paramount concern that must guide all child welfare services. To emphasize the
importance of the safety principle, the new law:
• States explicitly that child safety is the paramount consideration in decision-making
regarding service provision, placement, and permanency planning for children;
• Clarifies the reasonable efforts requirements by reaffirming the importance of reasonable
efforts, yet identifying those circumstances in which States are not required to make
reasonable efforts to keep the child with the parents (i.e., cases in which a parent has been
convicted of murdering another child, has had rights to another child involuntarily
terminated, has committed a felony assault resulting in serious bodily injury to the child or
another child of the parent, or when a court has found that the child has been subjected to
aggravated circumstances such as abandonment, torture, or chronic abuse); and
• Requires criminal record checks on the backgrounds of prospective foster and adoptive
parents.
Foster care is temporary. To ensure that the system respects a child's developmental needs and
sense of time, the law reaffirms reunification as a viable option for children whose families can
provide them with a safe, nurturing environment, strongly promotes the timely adoption of
children who cannot return safely to their own homes, and radically changes the time frames for
decision-making for children. To ensure that children can move out of foster care and grow up in
safe, permanent homes, ASFA:
• Reaffirms reasonable efforts to reunify families except under specified circumstances;
• Establishes a new reasonable efforts requirement for permanency, so that efforts will be made
to find families for children who are legally free and waiting for permanent placement;
• Requires States to hold the child's first permanency hearing within 12 months (rather than 18
months);
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page 1-5
• Requires States to initiate or join termination of parental rights (TPR) proceedings for
children who have been in care for 15 out of the last 22 months {unless the child is placed
safely with relatives; there is a compelling reason why TPR is not in the child's best interest;
or, when the family has not received the services that were part of the case plan); and
• Establishes adoption incentive payments for States to increase the number of children who
are adopted, leading to a doubling of the annual number of children adopted by the year
2002;
• Extends health coverage to children with medical needs who have an adoption assistance
agreement; and
• Allows adopted children to maintain title IV-E eligibility following the death of their
adoptive parents or a disruption in the prior adoption.
Permanency planning efforts should begin as soon as a child enters care. The law heightens the
importance of providing quality services as quickly as possible to enable families in crisis to
address their problems quickly. The law:
• Reauthorizes the Family Preservation and Support Program for three years and renames it the
Safe and Stable Families Program;
• Expands the use of program dollars to include time-limited reunification services for the 15
months after children enter care; and
• Authorizes pre- and post-adoption services to support adoptive families and supports
activities to expedite the adoption process.
The child welfare system must focus on results and accountability. The law indicates that
meeting procedural safeguards is no longer sufficient and that child welfare services should lead
to positive results. It requires:
• Development of child welfare outcomes and performance measures, and other tools for
focusing on results;
• Development of an annual report on State performance in child welfare including specific
indicators to assess State achievement; and
• Examination of the feasibility of a performance-based incentive system for child welfare
including a progress report and final recommendations to Congress.
Innovative approaches are needed to achieve the goals of safety, permanency, and well-being.
To allow for serious consideration of new ways to serve children and families, the law expands
Federal authority to support projects for the examination of issues, and the demonstration and
evaluation of program improvements related to child welfare. Specifically, the law:
• Expands the Department of Health and Human Services' child welfare demonstration
authority by allowing for award of up to ten grants per year for waiver of certain provisions
oftitlesIV-B and IV-E;
• Authorizes the Department to conduct two major policy studies: the first examines Kinship
Care; the second focuses on the relationship between substance abuse and child welfare; and,
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page 1-6
• Authorizes the General Accoxmting Office (GAO) to examine geographic barriers to the
adoptive placement of children.
With these principles and provisions in place, enactment of AFSA has provided State and
Federal officials with a unique opportunity to reform the child welfare system to make the
system more responsive to the multiple, and often complex, needs of children and families. The
law reaffirms the need to forge linkages between the child welfare system and other systems of
support for families, and, as indicated in these Guidelines, between the child welfare system and
the courts. The law also gives renewed impetus to dismantle the myriad barriers that still exist
between children waiting in foster care and permanency.
An ongoing commitment to strengthening all aspects of the child welfare system, effective use of
these Guidelines, and timely implementation of the new law will make a meaningful difference
in the lives of children in foster care, and in the lives of children who must come into contact
with the child welfare system in the future.
THROUGH THE EYES OF THE CHILD
Haifa million American children are in foster care, remaining in a psychological and
physical limbo far longer than they should. These are real children with their own stories and
personal dilemmas. It is easy to reduce their anguish to mere statistics and legal technicalities. It
is easy to lose focus on the complexity of their lives. Yet, it is the individual boy or girl that
constitutes the heart and soul of this document and who motivates our work on it. Here are some
examples of children whose lives will be improved if permanency can be achieved for each of
them.
In 1996 Brendan R., age four, was found dirty, hungry and alone. His mother, addicted to
cocaine and alcohol, was homeless and unemployed. Brendan was taken from her and spent 13
months in foster care. Motivated by the desire to regain custody of her son and assisted by a
persistent and hopeful social work team, Brendan's mother overcame her addictions, fulfilled the
requirements of court orders and her Parent/Agency Agreement, and found full-time
employment. In slightly over one year, Brendan returned to his mother's custody, having been in
the same foster home the entire time. Brendan represents a foster care success, but unfortunately,
Brendan's foster care experience is not typical. Of the nearly half million children in foster care,
most, approximately 65 percent, will return to their birth families but, unlike Brendan, the
average length of stay in foster care is three years and the average foster child experiences 3.2
different foster placements. These Guidelines try to reflect a child's sense of time and the need
to act and decide quickly. The Guidelines propose a focused and disciplined intervention in a
family monitored by regular court reviews so that more children and parents can benefit from
foster care as did Brendan and his mother.
Louis was also four when placed in foster care due to extreme abuse and neglect.
Unfortunately, his is a history of trauma and loss. After ten years in a series of foster homes, all
he wants is a family who will laugh at his jokes, take him for Chinese food (his favorite), and
Guidelines for Public Policy and Stale Legislation Governing Permanence for Children Page 1-7
keep him for life — a family who will be there long after he turns 1 8. Louis said recently, " God,
if you're listening, I really want a family." The State agency and court recently gave up hope of
finding an adoptive family for Louis and changed his case plan to long-term foster care. Louis'
dream of a forever family may never be realized.
" The foster care system, intended to provide temporary care, has become home for far
too many neglected and abused children." (Kate Welty, Achieving Permanence for Every Child:
A Guide for Limiting the Use of Long-Term Foster Care as a Permanent Plan, North American
Council on Adoptable Children, 1997, p.l.) Approximately 14,000 foster children per year age
out of foster care without ever returning to their birth families or being placed permanently in
homes of their own. (AFCARS. October 1, 1977-March 31, 1998 reporting period.) Effective
utilization of these Guidelines may reduce that number dramatically.
Tiffany and Victoria S. represent two of the approximately 20,000 foster children adopted
each year. It took far too long for them to be adopted. Tiffany was 5 when placed in foster care
and 12 when she was adopted (7 years later); Victoria was 3 when placed in foster care and 8
when she was adopted (5 years later). Their adoptive mother said, "Tiffany told us that she'd be
sitting on the couch in one of her foster homes, watching TV and the social worker would come
get her. She never knew when she came to a place whether it would be home for a month or a
year." Tiffany says, "It was hard to be in other homes and then think, Ts this going to be it, or
am I going to have to move again?' I'm very relieved to be adopted, and it's just good to know
that I am not going to have to worry about one day this social worker being here and all of a
sudden saying, 'Well, Tiffany, I'm sorry but you have to leave.' " (Kellogg Families for Kids,
1997 Progress Report, p. 2.)
Miranda was 2 months old when child protective services discovered her living with a
convicted drug dealer, who allegedly received the child in settlement of a drug debt. Miranda's
mother had relinquished four other children to relatives' custody. Both Miranda and her 3 year
old brother were born cocaine exposed. Miranda's lawyers, working closely with the public
agency, moved aggressively to find a legally secure and permanent placement. A maternal aunt
and uncle already had physical custody of Miranda's 3 year old brother and were willing to take
Miranda permanently, except they could not afford expenses for two children. The child's
lawyers found that the aunt and uncle were legally entitled to adoption subsidies for both
children and, with the aunt and uncle's permission, took the necessary legal steps to achieve
termination of the mother's parental rights and finalize the adoption and to secure adoption
subsidies for both children. Thanks to aggressive legal representation of the child, as
recommended in the Guidelines, Miranda spent three weeks in foster care before being placed
with her aunt and uncle. Her adoption was final within six months of the case coming to the
attention of the court.
Casey was starved and neglected during the first three months of his life. He was placed
with a foster-adopt family, in a concurrent planning process. Reunification with the birth parents
and long term permanency planning for Casey occurred simultaneously. The foster parents loved
and cared for him while trying to help Casey reunite with his birth parents by modeling good
parenting for them. After a year of intense services, Casey's parents decided that they could not
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page 1-8
parent him and voluntarily relinquished custody to the foster parents who then adopted him.
Casey is now 1 1 and his experience demonstrates several recommendations in the Guidelines:
remove the emotional uncertainty from the child as much as possible, give birth parents a fair
and reasonable opportunity to become adequate parents, provide long term permanence for the
child, and settle disputes voluntarily and non-adversarially as much as possible.
Tiffany, now 14, is Casey's adoptive sister, who was first placed with her adopfing family
on a concurrent planning, foster-adoptive basis when she was 1 1 . Now adopted. Tiffany stays in
touch with her grandmother and cousins in her extended birth family. Tiffany is an example of a
child benefiting from a fairly new legal option for children recommended by these Guidelines —
adoption with contact. Because of the voluntary arrangements between her birth and adoptive
families. Tiffany is experiencing something previously unknown in her life — commitment and
continuity. " I have my own room and have been going to the same school for three years — the
longest I've ever gone to one school," says Tiffany. "I have friends that I've known for years.
All those things are nice. . .but what's important is that every day when I go home, I know I will
be hugged and loved and supported in whatever I do. I know they'll never leave me." (Kellogg
Families for Kids, 1997 Progress Report, p. 8.)
Brothers Abe and Josh lived with their maternal grandparents since they were babies.
Their parents were very young and the relationship never really worked out. Their grandmother
says, " We asked the father if he would be willing to relinquish parental rights. We told him that
he had a right to his children, that we weren't taking them away from him, but that we would
raise them for him. He agreed right away, but for my daughter it took a little longer. In our
family my daughter is 'their mother' and they call me 'Mom.'" Josh, age 13, says, "Things are
all right with my mother but I don't really hang around with her. I just know her as my sister
really." Many communities and cultural groups and individuals are not comfortable with
termination of parental rights and formal adoption when it happens within the extended family.
Some say, " Why should I adopt him; he is already my grandson (or nephew or brother)?"
Permanent guardianship, a new legal status set out in the Guidelines, provides legal security and
stability while maintaining selected legal ties, including inheritance rights, to the birth parents.
For some children this status of permanent guardianship will provide just the appropriate level of
security and connectedness.
THE CHALLENGE OF DIVERSITY
When one looks in the face of an American foster child, one is most likely to see a child
of color. While they comprise only 35 percent of the general populafion, children of color make
up over 64 percent of the children in foster care, according to the most recent data available.
(USDHHS, Children's Bureau, National Study of Protective, Preventive and Reunification
Services Delivered to Children and Their Families, 1997.) When a family is reported for
suspected child abuse and neglect, minority children, particularly African-American children, are
more likely than white children to be placed in foster care rather than receive in-home services —
even when the children share the same problems and characteristics. (Id.) African-American and
Latino children tend to remain in temporary foster care twice as long as white children and, once
legally free for adoption, wait for adoption longer than white children do. (McKenzie, Adoption
Guidelines for Public Policy and Slate Legislation Governing Permanence for Children Page 1-9
of Children with Special Needs, The Future of Children, Spring 1993, p. 62.) Similarly, despite
the Indian Child Welfare Act, Native American children also are significantly overrepresented in
the foster care population.
Although a disproportionate number of minority children enter and remain in foster case,
recent reports published by the Children's Bureau clearly indicate that the actual incidence of
child abuse or neglect does not differ among different racial or ethnic groups. (Sedlak, A.J., and
Broadhurst, D.C., The Third National Incidence Study of Child Abuse and Neglect, Washington,
DC, 1996, pp. 7-22.) Therefore, the overrepresentation of children of color who have been
placed in foster care because of suspected child abuse and neglect is a particularly troubling
phenomenon.
Much like race, ethnicity, and culture, socio-economic status also affects entiy into foster
care. Close to 60 percent of foster children come from families receiving government support.
More than half (at least 52 percent) of the children in foster care come from families that are title
IV-E eligible (i.e., at the lowest end of the family income scale). (USDHHS, Children's Bureau,
National Study of Protective, Preventive and Reunification Services Delivered to Children and
Their Families, 1997, pp. 6-7.) When viewed cumulatively, statistics such as these suggest that a
complex set of service delivery dynamics is at work which profoundly affects the experiences of
minorities and low-income families in the public child welfare system. But even as we develop
increased levels of cultural competency among child welfare and court staff, and risk assessment
processes to account for cultural differences, and increase our understanding of the complex
problems related to poverty and family stress, we cannot adequately explain the
overrepresentation of poor and minority children in care. Consequently, the challenge posed by
diversity in the public child welfare arena remains as a critical issue, which has yet to be
addressed.
OUR COLLECTIVE CHALLENGE
No single group or element of our community has the ability or the responsibility to
improve the foster care system on its own. This fact presents a unique and difficult challenge to
the country's leadership. All the Nation's leaders collectively share equal levels of responsibility
for America's children, whether their sphere of operation is in local communities or in business,
the professions, science, education, social services, or any other type of work. The challenges
facing America's child welfare system are many and the keys to successful reform must come
from many quarters. Child welfare reform must be broad-based and interdisciplinary. The
potential for achieving meaningful child welfare reform lies in getting all components of our
communities to work together to implement specific improvements.
Read these Guidelines as a whole. They attempt to strike a delicate balance between the
child's urgent need for safety and permanency, and agency and court efforts to help parents
overcome the problems that result in child maltreatment or make their home unsafe for their
child. We hope these will be helpful to State legislators, policy makers, administrators, and
advocates interested in helping children achieve permanence. ..■'
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page I- 1
CHAPTER II: OPTIONS FOR LEGAL PERMANENCY
INTRODUCTION
This chapter is intended to identify options for legal permanency which States already
recognize, or can create, to better serve children in foster care. The legal processes governing
parental rehabilitation and grounds for termination of parental rights are addressed in succeeding
chapters (See Chapter III. Reasonable Efforts; Chapter IV, Court Process; and Chapter VI,
Termination of Parental Rights). The law should provide legally secure alternative permanent
placements for children who cannot be raised within their family of origin. The emphasis on
legally secure permanent placement is meant to provide the child psychological stability and a
sense of belonging, and limit the likelihood of future disruption of the parent/child relationship.
All State laws authorize adoption of the child, but traditional adoption does not meet the needs of
all children in public foster care. Legal options for permanent and legally secure placement
should be broad enough to serve the needs of all children in care who are not able to return to
their home of origin and could include adoption, permanent guardianship, and stand-by
guardianship.
For children who cannot be reared by one or both of their birth parents, adoption, by
relatives or non-relatives, is the preferred option for a permanent legal placement. By providing
children with a new family, adoption is most likely to ensure protection, stability, nurturing, and
familial relationships that will last throughout their lives. Alternatives to adoption discussed here,
such as permanent guardianship, should be used only when adoption has been thoroughly
explored and found inappropriate for the needs of a particular child.
These options for permanency reflect the same priority preference for permanent
placement of foster children with relatives that is reflected throughout these Guidelines: (1) safe
reunification with the biological parents or a suitable member of the family of origin; (2)
adoption; and (3) permanent guardianship. Yet this hierarchy of preference is not inflexible and
requires individualized judgements based on the circumstances of each individual child. For
example, if a child is psychologically attached to a relative and has been living for an extended
time with that relative but the relative cannot or will not adopt, a permanent guardianship with
that relative may be preferable to moving the child to a recruited adoptive family. On the other
hand, a relative with no established relationship with the child who offers to become a child's
caretaker late in the court process may not be as appropriate for adoption as foster parents who
have cared for the child for some time and who wish to adopt.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page
GUIDELINES AND COMMENTARY
GENERAL GUIDELINES
1. Principles. We recommend that State law reflect the following principles:
a. The most preferred permanent placement for a child is safe and permanent
reunification with the birth parent or extended family of origin.
b. For children who cannot be reared by their birth parents or within their
extended family of origin, adoption is the preferred permanent placement.
c. If adoption is not appropriate for a child unable to return home safely, State
law should establish other legally sanctioned permanent placements
including permanent guardianships.
d. A permanent placement includes the following characteristics:
i. It is legally intended to be permanent — both to last throughout the
child's minority and to establish family relationships that will last for
the child's lifetime,
ii. It is legally secure from modification,
iii. The permanent caregiver has the same legal responsibility for the
child as a birth parent,
iv. The State no longer has legal custody of the child and the permanent
caregiver is not subject to continuing State supervision.
e. State law should establish several legal options for permanent placement,
including legal guardianship or planned permanent living arrangements. In
addition. State law should permit agreed upon legally protected contacts
between the child and members of the child's birth family or other
significant persons, so long as the permanent placement option is based on
the child's best interests and ensures the stability and security of the
placement.
f. A decision to place a child permanently should comply with the letter and
spirit of the Multiethnic Placement Act of 1994 as amended (42 USC 51 15a et
seq.) and with the Indian Child Welfare Act (ICWA) (25 USC 1901 et. seq.).
g. State law should authorize the court that handled the child protection action
to approve an option for permanent placement and to exercise jurisdiction
over any post placement matters.
Commentary
Guidelines la-c above reflect the basic goals of existing Federal and State law
concerning permanent placements of children. Public child welfare agencies are expected to help
parents provide a safe home for children who have been, or are at risk of being, abused and
neglected. If children must be separated from their parents for safety reasons, agencies are
similarly expected to work for the child's return, if return is a realistic possibility. See Chapter
III, Reasonable Efforts.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page II-2
If, however, an agency has made reasonable but unsuccessful efforts to reunify the child
with his or her family of origin, or there is legal justification not to make such efforts, the agency
must make reasonable efforts to arrange a new permanent home for the child in a timely manner.
[See 42 U.S.C. §671(a)(15).] Federal and State law emphasize the vital importance of stability
and predictability in children's lives. Guideline lb emphasizes the strong preference for
adoption, a traditional status in which the child is psychologically and legally absorbed into the
adoptive family in a way not achieved by the other permanency options. When permanent
placement with a relative is proper for a child, that placement is best formalized through an
adoption. Where adoption is not appropriate for a child, however. Guideline Ic recognizes the
importance of some other legally permanent status for the child.
Guideline Id describes some of the necessary legal characteristics of a permanent
placement. When a child is placed in a new permanent home, the child's new caregivers should
be legally protected in their new role. At the same time, the new caregivers must make a
permanent commitment to the child and must take on full legal responsibility for the child. The
new caregivers should be legally protected in two basic ways. First, they — not the govenmient —
should have legal authority to direct the child's upbringing. Second, they should have no reason
for concern that either the government or the birth parents might later remove the child from their
home. Of course, all caregivers are subject to existing criminal and civil child abuse and neglect
laws.
Although adoption commonly transfers all parental rights and responsibilities to the
adoptive parents and ends all ties to the birth family. Guideline le recognizes that, in some cases,
children may benefit from maintaining some contact with birth parents, extended family, or other
significant persons in their lives. No single type of legal arrangement can meet the needs of every
child needing a new permanent home. See further discussion of adoption with contact under
Guideline 3 below and discussion of other permanency options including permanent
guardianship under Guidelines 4-6 below.
Guideline 1 f assumes full compliance with the Multiethnic Placement Act as amended
and other Federal law which prohibits any delay or denial of adoption or foster care placement
based on the child's or the prospective parent's race, color, or national origin. However, the law
also requires the diligent recruitment of potential foster and adoptive families who reflect the
ethnic and racial diversity of children in the State for whom foster and adoptive homes are
needed. [See 42 U.S.C. 51 15a and 42 U.S.C. 622(b)(9); J.H. HoUinger, Guide to MEPA-IEP
(ABA Center on Children and the Law), 1998.]
Guideline If also recognizes that the Indian Child Welfare Act (ICWA), 25 USC 1901 er
seq., allows tribal courts to exercise exclusive jurisdiction over some Indian children alleged to
be abused or neglected, and permits the tribe to appear as a party in a child protection action in
State court. In making out of home placements, the ICWA requires a State court to consider an
Indian child's tribal heritage and the political sovereignty of the tribe and its members. ICWA
directs a court to place an Indian child, in descending order of preference, with:
a. a member of the child's extended family.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page II-3
b. a foster home licensed, approved or specified by the child's tribe,
c. an Indian foster family licensed or approved by a non-Indian licensing authority,
d. an institution for children approved by an Indian tribe or operated by an Indian
organization that has a program suitable to meet the child's needs.
[See 25 USC 1901 et seq.; J.H. HoUinger, Ch.15 Adoption Law and Practice (1989-99).]
GUIDELINES FOR ADOPTION
2. Adoption Preferred. We recommend that State law reflect a preference for adoption.
Adoption, the legal and permanent transfer of all parental rights and
responsibilities to the adoptive parents, is the placement option that offers the
greatest legal protection to a child because the child becomes, in all respects, the
legal child of the adoptive parents.
Commentary
Adoption remains the placement of choice when a child cannot be returned to his or her
birth family, because it gives the child a new, permanent, legal family with the same legal
standing and protection as a family created through birth. Adoption is the permanent transfer of
all parental rights and responsibilities concerning a child to the adoptive parents. An adopted
individual is entitled to inherit from and through the adoptive parents and is treated as the child
of the adoptive parents for purposes of social security, insurance, retirement, pension, and all
other public and private benefit programs. Conversely, adoptive parents acquire rights to inherit
from and through the adopted child. Adoption thus provides, for the most part, the same
autonomy, security and durability of family relationships that children experience in their
families of birth. Children, adoptive parents, birth parents, and the general public also
understand and are familiar with this type of legal relationship. Children may be adopted by
relatives, step-parents, foster parents, or persons previously unrelated or unknown to them.
3. Post Adoption Contact Agreement: We recommend that State law authorize a court
terminating parental rights or granting adoption for a child in foster care to
approve an agreement by the adoptive parent or parents to allow post-adoption
contact between the child and a birth parent, sibling, grandparent, or other relative
or individual who has a signiflcant emotional tie to the child. State law should
provide for the legal enforcement of an agreement for post-adoption contact, subject
to the following:
a. Adoption is irrevocable, even if the post-adoption contact agreement is
violated, modifled, or set aside.
b. A birth parent's voluntary relinquishment of parental rights may not be set
aside if a post-adoption contact agreement is violated, modifled or set aside.
c. The court may approve the post-adoption contact agreement only if the
parties, including a child over the age of 12, agree and the court finds that
the agreement is in the best interests of the child.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page II-4
The court may approve post-adoption contact ranging from occasional
exchanges of cards, photographs and information to regular personal visits
in whatever level of detail the parties agree to and the court deems
appropriate as supported by the record.
Any part>' to the post-adoption contact agreement may petition the court to
modify the agreement, order a person to comply with the agreement, or to
void the agreement.
The court may order compliance, modify, or void the contact agreement only
if the parties agree or circumstances have changed and it is in the best
interests of the child. The court may use its contempt power to enforce
compliance as appropriate.
Commentary
Without protective legislation, post-adoption contact is purely voluntary and rarely
enforceable in court. Although a court might decide to exercise its equitable powers to enforce
an informal agreement in extraordinary circumstances, another court might decide to set aside an
adoption if it believes that ongoing contact with the birth family is inconsistent with the
severance of all legal ties to the birth family, which is the traditional consequence of adoption.
Despite these uncertainties, informal voluntary arrangements for post-adoption contact may be
appropriate for some children, especially when adoptive and birth families already know each
other and have a high degree of mutual trust. Legislation is needed, however, to protect the
benefits of voluntary arrangements by specifically providing that the validity of a voluntary
relinquishment, a judicial termination of parental rights, or a decree of adoption is not subject to
challenge because of an agreement for post-adoption contact or because of any failure to comply
with the agreement. See, for example, the Uniform Adoption Act (1994) § 3-707 (c) proposed to
the States by the National Conference of Commissioners on Uniform State Laws (NCCUSL) and
approved by the American Bar Association. The UAA provision, 3-707 (c) or similar provisions
have been enacted in 20 or more States. See, for example, Alaska, Maryland, Missouri, Ohio, and
Tennessee.
In addition, State laws should authorize judicial approval and enforcement of agreements
for post-adoption contact in appropriate circumstances. At least 13 States' have enacted "open"
or "cooperative" adoption laws that provide some mechanism for approval and enforcement of
post-adoption agreements. Most share two fundamental aspects — the parties must agree upon
post-adoption contact, and failures in post-adoption contact will not invalidate the adoption or
any relinquishments. While most States make such contact available to all adoptees e.g.,
Oregon, Or. Rev. Stat. §109.305 (1993); New Mexico, (N.M. Stat. Ann. 1978 ch. 32A, §5-35
(Michie 1978 & Supp. 1994)); Washington, (1986 Wash.Laws 26.33.295 (Supp. 1994));
Minnesota, (Minn. Stat. Ann. §259.58 (1997)); Montana, (Mont. Code Ann. §52-5-301 (1997));
West Virginia, (West Virginia Code 1966 ch. 48, art.4, §48-4-12 (1997)); and South Dakota (SD
* For contribution to this section, the Expert Wori< Group thanics fellow Work Group member Professor Joan
Hollinger, University of California-Berkeley School of Law, for input and edits of the commentary, and also
acknowledges the published work and comments of Professor Annette Ruth Appell, Boyd School of Law, LTNLV.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page II-5
Cod. Laws 25-6-17 (1997)), some State laws limit such post-adoption contact to children who
have been in foster care. See, for instance, Nebraska Rev. Stat. §§43-162 to 165; and New York,
N.Y. Soc. Serv. Law §383-c (McKinney 1992 & Supp.). California limits post-adoption contact
to children adopted by relatives (Ann. Cal. Fam. Code §8714.7) while Indiana limits it to
children 2 and over (Burns Ind. Code Ann §31-3-13 (1994). Other States simply acknowledge
that post adoption contact can occur (e.g., Ohio) or prohibit the court from forbidding such
contact (e.g., Missouri). At least one State (Florida) permits the court terminating parental rights
to order post-termination contact to be reviewed upon the adoption of the child. This may be a
useful mechanism when the child has a need for post-termination or post-adoption contact and
the adoptive parents have not been identified at the time of termination of parental rights and the
birth parents will not be present at the adoption.
Many foster children have psychological connections to their birth families, siblings, and
other significant persons, such as foster parents, so that it would be in the child's interest to
maintain some sort of contact even after adoption. The child may need to know and understand
his or her etlinic background and heritage. There may be a need to share medical information and
health histories. Preservation of an emotional tie may be beneficial to the child. Continued
contact may relieve an older child's guilt or concerns about the birth parent. Contact may help
the child come to terms with his or her past. A comiection with a biological parent may be a
positive, yet limited, influence, and may prevent the child from running away or disrupting a new
placement where the child desires continuing ties. Continued contact may avoid the trauma of
contested and prolonged termination of parental rights proceedings. Children generally benefit
from contact with siblings. These needs may be recognized and agreed to by the new parents and
approved by the court. The contact could be as simple as exchanging photos each year without
any physical contact, but the arrangements could leave a door open for fiiture relationships when
helpful to the child.
Birth parents, when given a chance, can be tremendous resources in planning for their
children and their participation can have positive outcomes for adoption. For many years, certain
adoption agencies have placed children in adoptions where birth parents maintain contact and
exchange information. This happens with infant adoption, direct consent adoption, and in
adoptions within the extended family. These "open adoption" arrangements are often negotiated
in the context of an adoption of older children, especially children with special needs, who have
been in foster care before being placed for adoption. In appropriate situations, even where child
protection proceedings have been initiated. States could encourage birth parents' involvement in
planning for relinquishment of parental rights and adoption of the child. (Voluntary
relinquishment by parents is discussed in Chapter V, Non-Adversarial Case Resolution; and in
Chapter VI, Termination of Parental Rights. The reader should refer to those sections.)
On the other hand, there may be pitfalls to maintaining ties between birth parents and
their children after children are placed into new permanent homes. For example, birth parents
might only reluctantly accept the new placement and may later try to disrupt or undermine it.
The child may be fearful or resistant to continuing contacts. The Guidelines which follow
recognize that determining whether an individual child needs a permanent placement with
ongoing birth parent-child contacts or contacts with siblings or members of the extended family
Guidelines for Public Policy and State Legislation Governing Permanence for Children Poge II-6
is a subtle and sophisticated task. Each case is unique and demands thoughtful and expert
consideration. Any post-adoption contact agreement must be voluntary, whether it is ratified by
the court or not. In some cases, however, there are no court orders and final discretion is left to
the adoptive parents while in other cases contact agreements are ratified by the court and become
legally enforceable.
Adoption with contact will be most successful when all of the parties to the contact agree
(1) that the contact should occur; (2) what type of contact should occur; (3) how or where the
contact will occur; and (4) how frequently the contact will occur. Such agreements should be
flexible enough to accommodate the changing needs and abilities of all the parties, particularly
the child. The parties could agree simply that the adoptive parents will keep the birth parents
informed about the child through voice, written, photographic, or videographic communication.
Or the parties could agree to face to face visitation. Or they could agree to any combination of
the two simultaneously or chronologically. The important issue is that the parties are
comfortable with the agreement.
To determine whether post-adoption contact is warranted, the primary concern is whether
it will meet the child's needs, interests and desires, not the needs and interests of the adults
involved without necessarily benefiting the child. "Adoption with contacf will likely promote
settlement of some termination of parental rights cases. The court, however, should not allow
adoption with contact merely because it is a convenient settlement option for parents facing a
strong termination of parental rights case. Nor should it be allowed merely because it is more
expeditious and convenient for an agency unwilling to put time and energy into a difficult
termination of parental rights case. "Adoption with contact" must serve the best interests of the
child.
Post-adoption contact, particularly between the child and birth parents, may be
contraindicated under certain circumstances. Contact should not be allowed if the child is fearful
of the parent or fearful that he or she will be removed from the adoptive home and returned to the
parent, for example, when the child has had many placements and does not have strong ties to the
parent, or if there is evidence that post adoption contact will undermine the integrity of the
adoptive relationship.
A subset of the Expert Work Group preferred not to recommend any post-adoption
legally enforceable rights of contact between a child and members of his or her family of origin,
particularly those against whom there was an adjudication or stipulation of child abuse or
neglect. The minority view among the Expert Group was that contacts between adoptive and
biological family should remain entirely voluntary with no enforceability by the court. They felt
that an enforceable right of contact, even when based on initial agreement among the parties,
erodes the exclusive rights and prerogatives of the adopting parents. In this view, the government
should not continue to be involved in the lives of families once an adoption is approved because
adoptive families are entitled to as much autonomy as any other legally recognized family. One
precedent for this view is the Uniform Adoption Act proposed to the States by the National
Conference of Commissioners on Uniform State Laws (NCCUSL), and approved by the
American Bar Association. In the Uniform Adoption Act, post-adoption visitation arrangements
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page II-7
between adoptive parents and birth parents or other members of the child's biological family are
permitted; however, they are not enforceable by the court except in the context of adoption of a
child by a stepparent.
Clarity within the statutes is important to give guidance to the court and parties and to
diminish the likelihood of future litigation. States must strike a balance between enabling parties
to change orders and making such actions so accessible that the parties will be in court
unnecessarily. The Guideline proposes that only a party to the agreement may move to enforce it.
Typically the parties to the agreement will be the child, adoptive parent(s), and biological
parent(s) but, in some cases, could include siblings, grandparents or other relatives, foster
parents, or any other significant person in the child's life. The Expert Work Group anticipated
that only a person who is accepted by the court as a party to the post adoption contact agreement
at the time of the signing of the agreement or entering the agreement into the court record would
be able to move to enforce the agreement. Many of the existing post adoption contact statutes
provide that contact can be modified or terminated only (a) when the parties agree or
circumstances have changed and (b) it is in the child's best interests. This standard strikes an
appropriate balance because it does not permit frivolous actions and protects the best interests of
the child.
As is recommended elsewhere in the Guidelines, the same court that orders the
termination of parental rights should have jurisdiction over the adoption. The court can provide
an important bridge between the two legal proceedings and protect the child's family ties when
they exist. The same court would be the forum for any subsequent motion to enforce a post
adoption contact agreement, but would otherwise not monitor or supervise the adoption.
GUIDELINES FOR PERMANENT GUARDIANSHIP
4. Permanent Guardianship. We recommend that State law provide for Permanent
Guardianship, as follows:
a. State law should authorize courts to award permanent guardianship to an
individual or couple who will serve as permanent caregivers of a child
without ongoing State supervision, based upon court determination that it is
in the child's best interest.
b. State law should authorize the same court conducting the adjudication of
child abuse or neglect to establish a permanent guardianship.
c. Permanent guardians should have legal custody and control of the child
including the power to make decisions concerning the child's care, education,
discipline, and protection. Birth parents may retain some ongoing contacts
with the child and may retain the obligation to pay child support.
d. Suitable relatives should be initially preferred for all placements, including
placements for permanent guardianship. In a contest for guardianship there
should be a presumption that the best interests of the child are served by
placement with a relative unless a person competing for permanent
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page II-8
guardianship has an established custodial relationship, having had custody
of the child for 12 of the past 18 months. In that case the court shall evaluate
the competing guardians on an equal basis with no presumption and should
award custody based on the best interests of the child.
Standards for Permanent Guardianship: Before ordering a child to be placed
in the permanent custody of the guardian, the court must find by clear and
convincing evidence that each parent's neglect, abuse or incapacity is of such
a serious nature as to demonstrate the parent's permanent inability to
provide for the child. A child aged 12 or older must consent. Further, the
court must find that an adoption is not possible or appropriate for the child,
that the proposed guardian is suitable and able to provide a safe and
permanent home, and that the permanent guardianship is in the best interest
of the child.
State law should bar courts from setting aside a permanent guardianship
except by a showing of clear and convincing evidence that the guardian has
failed, or is unable, to provide proper care and custody of the child.
For permanent guardianship to be a legal option that provides stability and
permanence for the child, children with special needs should be eligible for
placement subsidies.
Commentary
A legally secure permanent guardianship could provide an appropriate permanent plan for
those children whose return home or adoption is not appropriate or possible. Children in
permanent guardianship would not require on-going court or agency supervision. Parental rights
might not be terminated but the custodial rights of the parents would be transferred to the
guardians. In most States, there is no form of guardianship or custody that is designed to provide
a secure permanent arrangement for children who are not going to return to their birth parents or
be adopted. While there are a number of distinct legal categories of custody and guardianship
available, most are easily revoked and provide inadequate legal protections for the guardian or
custodian as well as inadequate permanence for the child. [See M. Hardin, Legal Placement
Options to Achieve Permanence for Children in Foster Care, in Foster Children in the Courts
128, 150-170 (M. Hardin ed. 1983).]
The Adoption and Safe Families Act of 1997 (ASFA) allows the court during a
permanency hearing to consider both adoption and legal guardianship as permanent placements
[Adoption and Safe Families Act of 1997, Public Law 105-89, §302 amending 42 U.S.C.
§675(5)(C)]. Permanent guardianship under State law should be consistent with the Federal
definition of legal guardianship in ASFA:
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page 11-9
The term 'legal guardianship' means a judicially created relationship between child and
caretaker which is intended to be permanent and self-sustaining as evidenced by the
transfer to the caretaker of the following parental rights with respect to the child:
protection, education, care and control of the person, custody of the person, and decision
making. The term 'legal guardian' means the caretaker in such a relationship.
ASFA, Public Law 105-89, §101(b), 42 U.S.C. 675(7).
Because the goal of permanent guardianship is to create a permanent /awZ/y for the child,
guardians should be adult individuals or couples, rather than public or private agencies. Once a
permanent guardianship is established, there should be no on-going court review or agency
supervision of the guardianship. The only exception is that the court would retain jurisdiction,
just as it would in child custody determinations following divorce, to consider any subsequent
motions to modify or terminate the guardianship or enforce orders of child support.
The judge handling the child protection proceeding should have authority to order a
permanent guardianship. An efficient legal process should address the whole needs of the child
consistent with the principle of one child, one judge. In States where guardianship requires a
separate proceeding in another court, there are formidable procedural barriers and guardianship is
sometimes avoided when it is most appropriate for the child and family. California, Michigan,
and Rhode Island, among other States, authorize the court hearing a child protection case to order
guardianship.
The permanent guardian would exercise full rights and responsibilities concerning the
child including the obligation to support the child. Birth parents could retain an obligation to
contribute to the support of a child to the extent of their financial abilities if ordered to do so by
the court. Courts could enter standing orders for support as part of the guardianship order, as
appropriate in the circumstances. The court may reserve certain contact to the parents in the
decree of permanent guardianship, including rights of visitation with the birth parents, siblings,
and/or extended family. The court decree of permanent guardianship divests the birth or prior
adoptive parents of legal custody and guardianship but does not terminate their parental rights.
Thus the decree of permanent guardianship differs from an adoption in that it does not affect a
child's inheritance rights or rights to other government benefits (e.g., social security in certain
cases) from and through the birth parents. (See M. Hardin, Legal Placement Options to Achieve
Permanence for Children in Foster Care, supra, at pages 171-3.) In fact, one legally significant
difference between adoption with contact and permanent guardianship can be the survival of
financial rights and benefits from the parents.
Permanent guardianship achieves a legally protected permanency but without terminating
parental rights. Some legal theorists distinguish between three levels of parental rights: custody
(to have physical possession and responsibility for daily care); guardianship (the right to make
the important decisions for the child); and residual rights (connection to the biological extended
family, rights of inheritance, and the possibility of regaining custody or guardianship, should one
lose them temporarily).
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page II- 1
Termination of parental rights generally terminates all legal relation between the child
and the extended biological family whose legal connection is derived from the parents' rights so
that the child is no longer related and becomes a legal stranger to them. (Similarly, in adoption
the child acquires a new set of parents and a new extended family.) In a permanent guardianship
the child remains legally related for inheritance purposes and may receive government and other
benefits from the biological mother and father and the extended biological family. Should the
permanent guardianship be terminated, for example, by death or disability of the guardian, the
parents and extended family members retain their legal relationship with the child. They could
have a right to be notified and attempt to show the court that the guardianship should be
terminated completely, restoring the rights of the parent or parents, or that the court should
appoint another relative as successor guardian for the child.
Obviously this legal status is not for every child. The Guidelines recommend that
adoption remain the preferred permanent placement for children who carmot be reunited with
their biological parents. Permanent guardianship may, however, serve some children very well.
The judgment as to when this status is in the best interests of the child is legally and
psychologically complex and should be made on a case-specific basis.
This Guideline also recommends that a preference for relative placement be reflected in
State law. Federal statutes allow States to consider a preference for relatives in the placement of
children out of home. The Federal Personal Responsibility and Work Opportunity
Reconciliation Act (PRWORA) of 1996 added a new State plan requirement under Title IV-E of
the Social Security Act:
"(19) ...[T]he State shall consider giving preference to an adult relative over a non-related
care giver when determining a placement for a child, provided that the relative care giver
meets all relevant State child protection standards."
Pub. Law 105-33, amending 42 U.S.C. §671(a).
The preference for relative placement should not be the sole determinant in all cases,
however. The purpose of giving preferences to relatives is to preserve the child's existing family
ties and to recognize the importance of family relationships in our society. These purposes may
be overridden when a child has deep emotional ties with an unrelated person. If a child has a
strong psychological parent-child bond with another caregiver such as a foster parent, granting
preference to the relative may not serve the interests of the child. In that case, the court should
consider the prospective guardians with no legal presumption in one direction or another but
taking into account, among other things, the importance to the individual child of the existing
psychological bond and of maintaining ties with the birth family.
Barriers limiting relative involvement must be removed. As discussed elsewhere in these
Guidelines (see Guideline 1, above and Chapter IV, Court Process), relatives should be
aggressively identified, recruited and assisted in their efforts, if willing to adopt or become
guardians. Relatives should have adoption counseling available to help them make a decision
about taking a related child into their immediate family.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page II- 1 1
Because a permanent guardianship would be legally secure and very difficult to set aside,
fairness, particularly to the parents, warrants application of strict standards. Permanent
guardianship is not a status to be entered into lightly. State law should require that the court
make a record in support of the guardianship including, where applicable, the fact that prior to
the permanent guardianship, the child was in State custody as the result of parental abuse or
neglect and parents were not able to resume care. Developing a sound legal record in support of
the permanent guardianship protects the status from challenges except on the grounds cited
below.
Permanent guardianship may be based on the consent of the parties if a factual basis for
the guardianship is preserved on the record. All parties need not consent to a permanent
guardianship, however, and the court may order permanent guardianship following a contested
hearing.
In Washington, for instance, a form of guardianship may be ordered after proofs
equivalent to those required for termination of parental rights. (Rev. Code Wash. §13.34.230.) In
Minnesota, following a Permanency Plarming Hearing, if the child is not returned home,
permanent legal and physical custody may be given to a relative. [Minn. Stat. Aim. §260.191
(3b)(a)(l) (West Supp. 1997).] Permanent custody with the relative resolves the child protection
case, entitles the child to remain with that relative indefinitely, and gives the relative full parental
rights.
In addition to finding that parental neglect, abuse or incapacity is of such a serious nature
as to demonstrate permanent parental inability to provide for the child, the court must find that an
adoption is not appropriate for the child.
Examples of factors a court could consider in determining whether adoption is
appropriate include evidence of the following:
• Skilled counseling to enable the child to grieve and accept the possibility of adoption
when the child is older and/or unwilling to cooperate with adoption;
• Efforts to secure an adoptive family including the use of adoption exchanges and
other adoption recruitment efforts;
• All interested inquirers have been considered as possible adoptive parents regardless
of race or geographic location of the inquiring families;
• Medical and financial subsidies to which the child is entitled have been offered to
potential adoptive parents including supports that are available for non-adoptive
placements;
• Counseling has been provided to potential guardians about the benefits of adoption;
• The social service agency has engaged in efforts to eliminate other possible systemic
barriers to adoption such as availability of services to enable independent living for
children with developmental disabilities;
• The child is living with a relative or caregiver who is committed to be a party to a
legal guardianship and agrees to raise the child to adulthood but is not willing to
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page 11-12
support termination of parental rights and expects to secure a voluntary
relinquishment;
• The child's behavior is so violent that he or she cannot live in a family setting of any
kind.
The court must also find that the proposed guardian is suitable. In cases where the child
has been living with the guardian, the quality of care will help establish this suitability, along
with a careful home study and criminal and other background checks. In cases where the child
has not been living with the guardian, the agency and court might rely entirely on the home study
and background check, or the court might delay a permanent decision until the child has been in
the home for a trial period.
When an adult individual or couple has permanent legal guardianship of a child, the legal
position of the guardian should be as secure as that of a typical birth or adoptive parent. That is,
it should not be possible to remove the child from the guardian unless it is shown that continuing
placement in the home is detrimental to the child. If there is a report of child abuse or neglect,
the child protection agency will have to provide the same evidence and proof that would be
required against a biological parent. If a custody dispute in the context of divorce occurs
between two guardians, the court would address the questions the same way it would handle
custody disputes involving biological or adopted children.
The Guidelines would give protection to permanent guardians, even against a challenge
by birth parents. Although permanent guardianship is intended to last forever, parents would not
be prohibited from applying to the court for custody if the permanent guardianship were
dissolved for some reason, such as the guardian's death or disability. Guardians should take a
long-range view of their responsibility for the child, however, including planning for their own
death or disability by nominating a successor guardian in a will or designating a standby
guardian.
Another way in which Federal law affects legal permanent placement options is through
the availability of Federal matching funds. Through the Federal Adoption Assistance program,
42 U.S.C. §673, persons who adopt eligible foster children with special needs are able to obtain
Federally matched payments to enable them to financially afford to care for children with special
needs. There are no equivalent Federally matched payments for children covered by legal
guardianships. Under the Title IVE Demonstration Authority, several States are testing legal
guardianship as a permanency provision for children for whom the agency cannot locate adoptive
parents. [42 U.S.C. § 1320(a)(9), as amended by ASFA, §301.] States with waivers to permit
subsidized guardianships include Oregon, Illinois, and Delaware. In addition, a number of other
States provide guardianship subsidies using State funds. Among these States are Alaska (for
Native Americans), California, Colorado, Hawaii, Illinois, Massachusetts, Nebraska, New
Mexico, South Dakota and Washington. (See Takas, Kinship Care and Family Preservation:
Options for States in Legal and Policy Development, ABA Center on Children and the Law,
1994; and Schwartz, Reinventing Guardianship: Subsidized Guardianship, Co-Guardians and
Child Welfare, Vera Institute of Justice, New York, 1993.)
Guidelines for Public Policy and Slate Legislation Governing Permanence for Children Page II- 1 3
In calculating the cost of subsidized guardianships, it is important for State legislatures to
take into account the savings from reduced administrative costs. That is, when children are
moved from foster care into a subsidized permanent guardianship with an adult individual or
couple, the State no longer has to pay for the administrative and court costs (staff time and other
expenses) related to monitoring and overseeing the child and foster home placement. Consider
the large number of public employees who are no longer required to supervise the child's life.
They include judges, lawyers for the State, child advocates, parents' attorneys, court clerks,
bailiffs, caseworkers, supervisors, agency administrators, and more. Children benefit because
guardianship provides more stability than long-term foster care and removes the stigma of being
a foster child.
GUIDELINES FOR STANDBY GUARDIANSHIP
5, Standby Guardianship. We recommend that State statutes provide for the legal
option of Standby Guardianship, which allows a chronically or terminally ill parent
to authorize another adult person to serve as guardian of a child when the parent
dies or becomes temporarily or permanently incapacitated.
Commentary
Standby guardianship is a legal mechanism that transfers decision-making for children in
those circumstances where a custodial parent suffering from a chronic or terminal illness is able
to designate a person to care for the child during the time the parent is unable to care for the child
or upon the parent's death.
With respect to Standby Guardianship, ASFA contains the following language:
SEC. 403 SENSE OF CONGRESS REGARDING STANDBY GUARDIANS
It is the sense of Congress that the States should have in effect laws and procedures that
permit any parent who is chronically ill or near death, without surrendering parental
rights, to designate a standby guardian for the parent's minor children, whose authority
would take effect upon:
(1) the death of the parent,
(2) the mental incapacity of the parent, or
(3) the physical debilitation and consent of the parent.
A parent can arrange for a Standby Guardianship without immediately ending his or her
parental rights. If the parent dies, the Standby Guardian can become guardian and also should
have the option of applying for adoption. Standby Guardianship may be an appropriate option
where parents are terminally ill (e.g., with cancer or HIV/AIDS) or when they suffer from a
disease or disorder that will become incapacitating. Standby Guardianship allows terminally ill
parents to choose who will become their child's guardian. It allows the parent to develop a
practical plan for transition of responsibilities. It allows the identified guardian to take over the
parental ftinctions when the birth parent dies or becomes incapacitated. New York was one of
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page 11-14
the first States to enact Standby Guardianship. (See NY SURR.CT.PRO. sec. 1726.) At least
nine States have enacted Standby Guardianship laws. (See Y. Samerson, Choices for Terminally
III Parents: A Guide for State Lawmakers, American Bar Association, 1997.) The National
Conference of Commissioners on Uniform State Laws proposes a standby guardianship in its
Uniform Guardianship and Protective Proceedings Act (1997), Section 202 (b). Thus, there has
now been significant experience with Standby Guardianship as a legal option for permanence.
California allows for "joint guardianship" for terminally ill parents, which is similar but
not identical to Standby Guardianship. (Calif Prob. Code Section 2105) Joint guardianship
allows the parent and guardian to have decision-making authority for the child at the same time,
while the parent is still alive and not yet incapacitated. It also allows the surviving joint guardian
to automatically take over upon the death or incapacity without confirmation by the court.
Eliminating the requirement of court confirmation following the triggering event may create a
smoother shift of authority than many Standby Guardianship procedures. New York's Standby
Guardianship statute, however, permits immediate commencement of the guardian's authority
without court confirmation if the parent provides written consent that is filed with the court
within 90 days. [S1726(3(e)(iii).]
GUIDELINES FOR PLANNED LONG TERM LIVING ARRANGEMENTS WITH A
PERMANENT FAMILY
6. Planned Long Term Living Arrangements: We recommend that State law provide for
planned long term living arrangements, as follows:
a. While State law should authorize courts to approve long term living
arrangements with a specific and identified permanent family for a child who
will not return to his or her family of origin, it is the least preferred choice
among the permanent placement options. It should be permitted only under
strictly limited circumstances.
b. State law should authorize long term living arrangements with a specified
family only upon a court finding that one of the following two situations
exists:
(1) Older child, stable foster home, with ties to birth family:
• There exists a documented, positive, and ongoing relationship between
the child and birth relatives or other caregivers;
• There exists a stable foster care placement that is predicted to last until
the child leaves foster care or reaches majority; and
• The child has attained the age of 14 and agrees to the plan; or
(2) Child with serious and profound disability:
Guidelines for Public Policy and State Legislation Governing Permanence for Children Poge II- 1 5
• The child has serious and profound physical, emotional, or mental
disabilities;
• It is unlikely that adequate services could be guaranteed in a subsidized
guardianship or adoptive placement; and
• There is a long-term stable relationship.
Before permitting extended long term living arrangements with an identifled
and permanent family without a current plan to achieve permanent
placement, State laws should require that a court find by clear and
convincing evidence that the preferred permanent placement options of
adoption and guardianship are not available or appropriate for this child.
Commentary
For several reasons, planned long-term living arrangements are by far the least desirable
option among the permanent placement options when a foster child cannot safely retvim home.
First, the foster parent and the children placed with them have the least protection against change
of placement or overly cautious decision-making by agencies and courts. Second, the State
continues to have decision-making power over the child, fragmenting both responsibility and
decision-making and minimizing the permanent caregiver's role. Third, there is the greatest
practical risk of placement disruption.
State regulations and policies should specify the limited situations in which planned long-
term living arrangements can be designated. Long-term living arrangements should not be
permitted when other legal options are practical and available.
Note that planned long-term living arrangements are legal permanent placement
arrangements only when the child is placed with an individual or couple who are to serve as
permanent surrogate parents. Where a child with special needs is in the custody or control of a
public or private agency, continuation of the placement should not be the permanent goal for the
child.
Guideline 6b is based on the criteria for using long-term foster care set forth by the North
American Council on Adoptable Children (NACAC) in Achieving Permanence for Every Child:
A Guide for Limiting the Use of Long-Term Foster Care as a Permanent Plan, p. 23. Children in
planned long-term living arrangements should continue to receive assistance from the State
agency and supervision of the court, including continuing access to an attorney for the child. All
should exercise great caution to support the family and child to prevent disruption of the
placement.
Decisions resulting in permanent or long-term living arrangements should be based upon
a thorough assessment of the child's needs and the family's capacity to meet those needs
currently and into the child's future. Simply meeting State licensing standards is not sufficient.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page II- 1 6
A home study or an evaluation of the family, a written agreement between the agency and the
family, the child's consent, and a statement of the family's intent to parent the child into
adulthood should also be required. These materials should be discussed, developed, and agreed
to by all parties, including the child, the surrogate parents, and the agency. Some States use a
"permanent foster family agreement" (PFFA) to structure these arrangements, although
commonly such agreements are not based upon a thorough assessment of the family's capacity to
meet the ongoing, life-long developmental needs of the child and other safeguards envisioned in
these Guidelines.
In addition to planned long-term living arrangements with a specified family, a small
subset of the Expert Work Group would recommend long-term foster care in institutions,
including group homes and other institutional settings such as orphanages.
Guideline 6c reflects that continued foster care in a placement not intended to be
permanent is not an acceptable option for foster children unable to safely return home. Extended
temporary foster care is justified only if diligent efforts to secure a permanent home for the child
have been serious, sustained, and unsuccessful. Even less desirable is a situation in which the
agency is no longer making ongoing efforts to achieve a permanent home for the child. This is
justified only if the child is not able to function in a family environment even with adequate
supports. Because extended temporary foster care is an undesirable option for any child, it
should be used only in extreme conditions — that is, when no other choices are available. State
laws should require clear and convincing evidence that all other options have been seriously
pursued in a sustained manner and, despite diligent efforts, have been unsuccessful. More
importantly, if such situations arise, every effort should be made to place the child in a planned,
permanent home or to find other suitable permanent living arrangements that address the child's
individual needs. Title IV-B Subpart 2 funds may be used by States for placement and post-
finalization services.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page 11-17
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Welfare. Technical Report, Vera Institute of Justice, New York, NY, June 1993. Distributed by
the Vera Institute of Justice; 377 Broadway, New York, NY 10013.
Schwartz, M. "Reinventing Guardianship: Subsidized Guardianship, Foster Care and Child
Welfare." New York University Review of Law and Social Change 22: 441 (1996).
Somogye, T. "Opening Minds to Open Adoption." University of Kansas Law Review. 45: 619
(March, 1997).
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page 11-19
Takas, M. "Kinship Care: Developing a Safe and Effective Framework for Protective Placement
of Children With Relatives." Zero to Three 13 (3): 12-17 (1992).
Takas, M. Kinship Care arid Family Preservation: Options for States in Legal and Policy
Development. Washington, DC: ABA Center on Children and the Law, September 1994.
Welty, K. Achieving Permanency for Every Child: A Guide for Limiting the Use of Long-Term
Foster Care as a Permanent Plan. St. Paul, MN: North American Council on Adoptable
Children, 1997.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page 11-20
CHAPTER III: REASONABLE EFFORTS TO PRESERVE
FAMILIES AND ACHIEVE PERMANENCY FOR CHILDREN
INTRODUCTION
"Reasonable efforts" requirements were introduced into child welfare proceedings by the
Federal Adoption Assistance and Child Welfare Act of 1980, Public Law 96-272 (AACWA).
Since the enactment of AACWA, reasonable efforts has been a core concept in American child
welfare and practice. The Federal Adoption and Safe Families Act of 1997, Public Law 105-89
(ASFA), maintained but refined this concept. ASFA provides that:
(B) . . . reasonable efforts shall be made to preserve and reunify families —
(i) prior to the placement of a child in foster care, to prevent or
eliminate the need for removing the child from the child's home;
and
(ii) to make it possible for a child to safely return to the child's home;
(C) if continuation of reasonable efforts of the type described in subparagraph
(B) is determined to be inconsistent with the permanency plan for the
child, reasonable efforts shall be made to place the child in a timely
manner in accordance with the permanency plan, and to complete
whatever steps are necessary to finalize the permanent placement of the
child. [42U.S.C. §671(a)(15).]
Federal law previously required States to make reasonable efforts to prevent placement
and reunify families. It now also requires reasonable efforts to secure a new permanent family
when it is not possible either to prevent placement or reunify the family.
These Guidelines are intended to assist States in implementing the procedural aspects of
reasonable efforts requirements. Further, they are designed to help States identify and clarify
what core services might be appropriate to assure meaningful rehabilitation services for a
dysfunctional family and what services are appropriate to assure permanent placement of
children unable to safely return home.
Requirements for case plans, administrative reviews, and permanency hearings support
the reasonable efforts requirements.
The Federal requirement for reasonable efforts has three major prongs. First, children's
health and safety must be the paramount concern in providing and reviewing reasonable efforts.
[42 U.S.C. §671(a)(15)(A).] Second, the State agency must make reasonable efforts to preserve
families before placing a child in foster care. These efforts are designed to prevent or eliminate
the need for removing the child from his or her home and to make it possible for a child to safely
return to his or her home. [42 U.S.C. §671(a)(15)(B).] Note, however, that the court may
determine that reasonable efforts are not required in certain cases, as explained below. [42
U.S.C. §671(a)(15)(D).] Third, when the child's return home is no longer the appropriate plan.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page III-l
reasonable efforts are required to arrange and stabilize a new permanent home for the child. [42
U.S.C. §671(a)(15)(C).]
The following Guidelines are designed primarily to help States establish criteria and
procedures for deciding what services (reasonable efforts) they should provide to preserve or
reunify families. For children who are not going to be reunified with their birth families, the
Guidelines are designed to help States establish criteria and procedures for making reasonable
efforts to find alternative permanent homes. The Guidelines recommend, strengthening the
courts' oversight both of agency case-by-case efforts to preserve and reunify the family and
agency efforts to achieve alternative permanent homes. State laws concerning reasonable efforts
must respect parental rights; accommodate children's need for timely, safe, and permanent
homes; and observe basic fairness and due process of law.
This chapter provides an overview of the reasonable efforts doctrine, but not all
guidelines concerning reasonable efforts appear here. Certain provisions concerning judicial
oversight of reasonable efforts within specific stages of the court process appear in Chapter IV,
Court Process. Chapter VI, Termination of Parental Rights, includes a discussion of when
agencies must prove that they have provided appropriate services to preserve the family, as part
of the grounds for termination.
GUIDELINES AND COMMENTARY
1. Require Reasonable Efforts: We recommend that State law require the court to
determine whether the State has made reasonable efforts to prevent placement,
reunify the family, or secure a new permanent home for the child.
Commentary
The reasonable efforts provision was established to limit unnecessary and inappropriate
removal of children from their families and to expedite safe reunification of children through the
provision of services. Although long an element of Federal law governing eligibility for Federal
fiands, the reasonable efforts requirement is not always incorporated into existing State law and
procedure. The doctrine of reasonable efforts has become a core concept in American child
welfare law and practice and should be reflected in State, as well as Federal, law.
2. Convene State-Specific Study Commission: We recommend that as part of developing
criteria and procedures for a State reasonable efforts policy. States should convene a
commission of their most knowledgeable people.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page III-2
Commentary
States should develop criteria for reasonable efforts, a comprehensive catalogue of
available services, and administrative and judicial policies to define and operationalize the
reasonable efforts requirements. Federal law sets out a policy of reasonable efforts to preserve
families, reunify families or find an alternative permanent placement for a child who cannot be
reunified with his or her birth family. However, current Federal law allows the States to
establish criteria and procedures for implementing a policy that defines reasonable efforts.
Federal law also specifies circumstances in which the State may not be required to make
reasonable efforts.
What "core services" should a State make available to (a) families in crisis and (b)
children in need of a new permanent home? How can the State assure that needed services are
provided promptly to prevent placement, reunify families, and find permanent homes for those
children not returning to their birth families? By what process should a State decide whether or
not to provide reunification services? Under what limited circumstances should the State
immediately seek new permanent homes for children without first seeking to rehabilitate the
parents? The process should be timely and fair both to children and parents.
State agency policies or regulations should clearly define the agency's obligations to
make reasonable efforts to reunify the family. Clarifying these obligations gives the judge a
more objective basis to determine whether reasonable efforts have been made and helps child
welfare agencies know what is expected of them. State legislatures or agencies could ensure
appropriate service delivery by clearly identifying a core of services generally needed by families
of abused and neglected children. Once identified, the State legislature or agency could prioritize
services by their effectiveness and their costs. The agency would then decide which of those
services they could provide promptly to families with children in foster care. Legislatures could
require State or local agencies to both develop and deliver this core of services. For example, a
core of services might include, among others, substance abuse treatment, time limited counseling
services, and in-home intensive services. Such services might also include limited flexible funds
that could meet immediate material needs of families. (See M. Hardin, Establishing a Core of
Services to Preserve Families Subject to State Intervention: A Blueprint for Statutory and
Regulatory Action, 1992; G. Diane Dodson & M. Hardin, On-Time Services to Preserve
Families: A Guide for Child Protection Agency Administrators and Policymakers, 1997; Report:
Reasonable Efforts Advisory Panel Meeting, National Resource Center for Legal and Court
Issues, ABA Center on Children and the Law and the National Child Welfare Resource Center
for Organizational Improvement, University of Southern Maine, 1995.)
Though agencies need flexibility to determine the appropriate treatment techniques
applicable to an individual family, many agency clients always need certain services. An
organized set of these frequently needed services, available in sufficient quantities, will help
avoid service delays that hinder timely attainment of permanent homes for children.
Identifying the core of services available for reasonable efforts and designing the criteria
and process for determining how the State is to make reasonable efforts is a complex and
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page III-3
difficult task. To address these profound issues, States should enlist the assistance of their most
knowledgeable people to carefully study the characteristics and needs of children who most often
end up in long-term foster care in their State and the needs of the families of those children. One
approach is to convene work groups including a range of key experts and stakeholders, to
schedule regular meetings of the group, and to plan for that process to culminate in
recommended agency policy, draft legislation, and court rules. Such work groups should take
into account and not duplicate the State's judicial self-assessment.
Most States have recently conducted carefial self-assessments of their courts' performance
in child abuse and neglect cases, including the courts' oversight of reasonable efforts. Taking
into account the results of the self-assessment, a new State study commission can focus on
improving and organizing the delivery of services, implementing the new ASFA requirements,
and improving coordination between service providers and the courts.
3. Child's Health and Safety Paramount: We recommend that State law require that, in
the implementation of reasonable efforts, the child's health and safety be the
paramount concern.
Commentary
Federal law does not require agencies to make efforts to prevent placement or reunify
families where such efforts will endanger a child's health and safety. Federal law states that: " in
determining reasonable efforts to be made with respect to a child . . . and in making such efforts,
the child's health and safety shall be the paramount concern." [ASFA, §101(a), 42 U.S.C.
§671(a)(15)(A).] In addition, reasonable efforts to preserve the family are not required if a court
finds that the parent has committed certain serious criminal acts against the child or against
another child of the parent, which may jeopardize the child's health or safety. [ASFA, §101(a),
42 U.S.C. §671(a)(15)(D).] Finally, even if none of those specific circumstances applies, courts
may exercise their discretion, in individual cases, to protect the health and safety of children.
[ASFA, § 101(d), 42 U.S.C. §678.] Thus, courts and agencies are not required to make reasonable
efforts to preserve and reunify families if such efforts would not be possible without endangering
a child's health and safety.
States' obligations to make "reasonable efforts" have sometimes been misinterpreted to
require the endangerment of children for the sake of family preservation or reunification. To
eliminate such misinterpretations, ASFA makes clear that efforts to prevent removal or to reunify
a family are not required when such efforts would endanger a child.
State law should also specify that services are not required when such services might
endanger a child's health and safety. State law should make it clear that agencies can respond
flexibly in emergencies and when situations suddenly change. Further, it should be clear that
when an agency takes such a step it will be considered to have made "reasonable efforts" to
prevent placement or reunify the family. Sometimes temporary denials or cessation of services
are reasonable.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page III-4
State law can also make it clear to agencies and courts that service plans should not
present undue risks to children. Agencies should not propose and courts should not approve
services to prevent placement if those services would place a child in serious danger. Agencies
should not persist in providing reunification services where doing so would be harmful or
dangerous to the child, and courts should not approve the continuation of such services.
While an agency might not safely be able to prevent removal, it may be able to provide
services that will permit a child's early safe return home. When an agency must stop a particular
reunification service, other services might be helpful.
4. Reasonable Efforts to Preserve and Reunify Families: We recommend that State law
require that, in determining whether the State has made reasonable efforts to
prevent placement and reunify the family, courts consider whether services to the
family have been accessible, available, and appropriate. In evaluating the
accessibility, availability and appropriateness of services, State law should require
the court to consider the following:
a. Dangers to the child and the family problems precipitating those dangers;
b. Whether the agency has selected services specifically relevant to the family's
problems and needs;
c. Whether caseworkers have diligently arranged those services;
d. Whether appropriate services have been available to the family on a timely
basis; and
e. The results of those interventions.
Commentary
Federal law requires judicial findings that agencies have made reasonable efforts to
prevent the need to remove a child from home or to make it possible for a child to return home
safely. [42 U.S.C. §§671(a)(15), 672(a)(1).] State law can assure compliance with Federal
program requirements for foster care and implement the reasonable efforts policy more
efficiently if it adopts a procedure and substantive criteria in its own statutes or court rules. The
court must determine whether reasonable efforts were made at the time a child is removed from
home.
To define the meaning of the reasonable efforts obligation, it is helpful to break the
obligation into its different elements. The first part of an agency's and court's obligations
concerning reasonable efforts is to clarify the reasons for State intervention. That is, before
determining whether an agency has made reasonable efforts to prevent the need to remove a child
from home or to return the child home, a court must first clarify the danger to the child that
required State intervention and document the problems precipitating the danger. Without
knowing exactly what dangers prevent a child's immediate return home and what family
problems create or maintain a dangerous situation for the child, the court cannot determine
whether the agency's efforts to rehabilitate the family were reasonable.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page III-5
Second, having identified the dangers and problems precipitating State intervention, the
court must decide whether the services proposed by the agency are customized to the individual
needs and strengths of the family and relevant to the problems requiring placement of the child.
To decide if services are relevant, a judge might take into account other services the agency
might have offered or possible interim caregiving. In other words, if some other form of
available help to the family would have been far more likely to succeed, a judge might determine
that there had not been reasonable efforts.
Third, the court must decide whether the agency caseworkers were reasonably diligent in
implementing the agency's case plan for the family and the child. Agencies might adopt their
own regulations specifying what concrete steps by caseworkers would constitute reasonable
casework to rehabilitate a family. For example, the regulations might include the following:
• Caseworkers must closely consult with parents to develop a case plan (using a
language translator if necessary) which elicits and takes into account their views
concerning services, to make sure the services match their schedules, and to
periodically determine whether parents feel that the services are helping.
• Caseworkers must oversee each service provider, explaining to the provider what
each service is supposed to accomplish for the family and child, sending a copy of the
case plan to the provider, and setting a timetable for each service. The caseworker is
responsible for ensuring that the provider adheres to the case plan by checking up
periodically with the provider to guarantee that the service is being provided as
agreed and that parents are participating.
• Caseworkers must ensure that parents and children have access to services, including
arranging for children to be present, when appropriate, and making sure that parents
have practical means of transportation, taking into account the resources available to
parents.
• Caseworkers must periodically visit children and parents in person as required by
agency regulations or policy.
• Caseworkers must arrange for parent-child and sibling visitation.
Fourth, the court must decide whether appropriate services were actually available and
delivered on a timely basis to help the family. While it is sometimes difficuU forjudges to
determine whether or not public agencies have been "reasonable" in developing and providing
services for families, such a determination is possible. For example, if the child welfare agency
has a specific list of services that an agency provides to families, a judge could determine what
services on the list were relevant to the family's problems and whether such services were
provided to the family on a timely basis.
5. Reasonable Efforts to Finalize Placement: We recommend that, in determining
whether the State has made reasonable efforts to make and finalize a new
permanent home for the child (in cases where reunification is no longer the child's
exclusive permanency plan), State law instruct courts to consider whether services
to achieve that goal have been accessible, available, and appropriate. In evaluating
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page III-6
the accessibility, availability and appropriateness of services, the law should require
the court to take into account the following:
a. Whether the agency has identified an appropriate strategy to make and
finalize a new permanent placement for the child;
b. Whether there has been diligent arrangement for the provision of those
services; and
c. Whether adequate and appropriate services have been available on a timely
basis.
Commentary
Reasonable efforts to make and finalize a new permanent placement for a child who
cannot be reunified with his or her birth family can be broken down into three basic issues. The
first issue is whether the agency has identified an appropriate strategy to make and finalize a
permanent home. For example, if the child has complex special needs, a judge might ask several
questions. Has the agency selected a good specialized placement agency to find an adoptive
home and is it offering adequate adoption subsidy and medical assistance protections? Does the
agency plan to list the child with appropriate adoption exchanges? Has the agency explored all
available families consistent with MEPA? (See generally, J. Hollinger, A Guide to the
Multiethnic Placement Act of 1994, as Amended by the Interethnic Adoption Provisions of 1996,
ABA 1998.)
The second issue for the judge is whether there has been diligent follow-through to
provide those services. For example, a judge might ask the following questions. Has the agency
taken timely steps to list the child with appropriate registries? Has the agency diligently
searched for potential new parents? Has the agency fully explored whether relatives or foster
parents are interested in adopting the child? Has the agency screened and tentatively selected
potential new parents? Has the agency taken timely steps to complete home studies? Has the
agency counseled and prepared the child for adoption? Has the agency proceeded to prepare
adoption assistance agreements (where applicable)? Has the agency arranged for post-adoption
services?
The third issue is whether adequate and appropriate services exist to place and stabilize
the child in a new permanent home. For example, a judge might ask several questions. Has the
agency explored the interest of relatives and foster parents in adopting the child? Is there an
available adoption placement agency with specialized skills helpful to this child and a good track
record? Does the State adoption agency permit adoption subsidy terms that will provide
sufficient and secure services to the child to improve the odds of a stable placement? Does the
public adoption agency promise other post-adoption services, as necessary to stabilize the
placement?
6. Reasonable Efforts Include Concurrent Planning: We recommend that State law
indicate that reasonable efforts may include concurrent efforts both to reunify a
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page 1II-7
family and to ensure that an adoptive or other alternative permanent home will be
available if needed by the child.
Commentary
Concurrent planning means working to reunify a family while, at the same time, plarming
for the possibility that reunification will not succeed. In circumstances where the probability of
successful reunification is unlikely, concurrent planning can benefit the child by reducing the
length of time that the child is in a temporary placement. For example, an agency might seek out
foster parents or potential adoptive parents who will be willing to adopt the child should
reunification efforts fail. ASFA explicitly authorizes this practice by providing that "reasonable
efforts to place a child for adoption or with a legal guardian may be made concurrently with
reasonable efforts [to preserve the family]." [42 U.S.C. §671(a)(15)(F).]
7. Criteria for Not Requiring Reunification Services: Reasonable efforts to prevent
removal of a child or to reunify a family are required in most cases. We
recommend, however, that State law specify that the State is not required to provide
reunification services if there is a judicial finding that the child cannot be safely
returned home within a reasonable time, even if reunification services are provided.
This is shown by parental behavior that includes one or more of the following:
a. The parent committed murder or voluntary manslaughter, or conspiracy to
murder another child of the parent, or committed a felony assault that
resulted in serious bodily injury to the child or another child of the parent.
b. The parent aided or abetted, solicited, attempted, or conspired to commit
such a murder or voluntary manslaughter.
c. The parent committed, solicited, aided and abetted, or engaged in a
conspiracy to commit other specified crimes against children.
d. The parents' rights to the child's sibling were previously involuntarily
terminated.
e. The parent abandoned a child for [30], [60], [90] or more days and the
identity of the parent is unknown and cannot be ascertained despite diligent
efforts to do so.
f. The parent's abuse or neglect of the child, a sibling, or other child in the
household was so extreme or repeated that any plan to return this child home
would present an unacceptable risk. Factors the court might consider in
determining the extent of risk include:
• The seriousness of the injury or harm to the child or risk of injury or
harm associated with the abuse or neglect;
• Whether the abuse or neglect was the result of a parental character
disorder or compulsion unlikely to change (e.g., as shown by extreme
cruelty or sexual abuse); and
• The frequency, number, and severity of incidents of abuse or neglect.
g. The child's parent makes an informed and voluntary decision not to
receive services or assistance to prevent removal or reunify the family.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page III-8
Commentary
Federal law provides that States are not required to make reasonable efforts to preserve or
reunify a family in all cases, although State agencies and courts aie permitted to extend
prevention and reunification services to families even jn circumstances where Federal law would
not require it.
Most of the above criteria for not requiring reunification services are consistent with
existing Federal law. Criteria a through c paraphrase CAPTA or ASFA, and criterion d directly
reflects the ASFA exception to the obligation to provide reunification services. Similarly, while
the language of criteria e and f was supplied by the Expert Group, it reflects or stands in place of
ASFA language, particularly the language related to aggravated circumstances. Criterion g,
however, was added by the Expert Group to the criteria already established by Federal law.
The above criteria presume it is highly unlikely that the child can be placed with the
parent within a reasonable time even if services are provided to reunify the family. That is, when
one or more of the criteria specified in this Guideline apply in an individual case, it is unlikely
that reunification services can succeed within a reasonable time.
Under Federal law. States are not required to make reasonable efforts to preserve the
family in all cases. ASFA, §101, 42 U.S.C. §67 l(a)(15){D) provides that:
[RJeasonable efforts [to prevent the need for placement and to reunify the family]
shall not be required to be made with respect to a parent of a child if a court of competent
jurisdiction has determined that—
(i) the parent has subjected the child to aggravated circumstances (as defined in
State law, which definition may include but need not be limited to abandonment, torture,
chronic abuse, and sexual abuse);
(ii) the parent has~
(I) committed murder (which would have been an offense under section 1 1 11(a)
of title 18, United States Code, if the offense had occurred in the special maritime or
territorial jurisdiction of the United States) of another child of the parent;
(II) committed voluntary manslaughter (which would have been an offense under
section 1 1 12(a) of title 18, United States Code, if the offense had occurred in the special
maritime or territorial jurisdiction of the United States) of another child of the parent;
(III) aided or abetted, attempted, conspired, or solicited to commit such a murder
or such a voluntary manslaughter; or
(IV) committed a felony assault that results in serious bodily injury to the
child or another child of the parent; or
(iii) the parental rights of the parent to a sibling have been terminated
involuntarily.
Thus, ASFA sets forth certain limited circumstances in which reasonable efforts
to prevent removal and reunify the family are not required. These include the
commission of certain specified crimes, as set forth above and that parental rights
Guidelines for Public Policy and Slate Legislation Governing Permanence for Children Page II1-9
concerning a sibling have previously been terminated. Beyond the mandatory
circumstances, ASFA allows States to further define "aggravated circumstances."
Federal law requires a number of the circumstances listed in these Guidelines.
Criteria a and b are based on crimes specified by ASFA and the Federal Child Abuse
Prevention and Treatment Act (CAPTA), in which "reasonable efforts'" are not required.
[ASFA, §101, 42 U.S.C. §671(a)(15)(D)(ii); CAPTA, §107, 42 U.S.C.
5106a(b)(2)(a)(xii).] Criterion c invites States to add additional serious crimes, not
specified by ASFA, as criteria for not requiring reunification services. Among other
things, these might include crimes committed against children other than the child in
question or the child's siblings. In particular, h might include crimes committed against
another child residing in the child's household.
Criterion d, based on termination of parental rights to a sibling, is specifically
required by ASFA as an exception to the obligation to provide reunification services.
Some States think this ground is too broad and have elected to define it more narrowly.
One way of doing this is to require that the States have made diligent efforts to
rehabilitate the family in the case of a prior termination of parental rights.
Criterion e deals primarily with abandoned infants. ASFA and CAPTA require
expedited termination of parental rights for abandoned infants. [ASFA, § 103(a)(3), 42
U.S.C. §675(5)(E); CAPTA, §107, 42 U.S.C. §5106a(b)(2)(a)(xi)(I).] Since expedited
termination is required for abandoned infants, it is also logical to include these as criteria
for not requiring reunification services.
Criterion f includes cases in which returning the child home would be an
unacceptable risk even if a parent appeared to improve as the result of reimification
services. In these cases, there typically is a combination of factors demonstrating the
extreme risk to the child. Among these factors are the severity of the harm or threat to
the child, the number and frequency of incidents of abuse and neglect, and the
particularly cruel or compulsive nature of the parent's acts. The Expert Work Group
preferred paragraph f to the language identifying specific examples of " aggravated
circumstances" that appears in ASFA (i.e., "sexual abuse, torture, or chronic abuse").
Criterion g involves the situation in which a parent chooses not to participate in
services to try to preserve the family and not to accept other assistance. Rather than
assuming that parents want to work toward family reunification, agencies should help the
parents decide whether this is their goal. Of course, it is essential that the parent is
properly counseled and the parent's decision is fiiUy informed.
ADDITIONAL QUESTIONS AND CIRCUMSTANCES THAT STATES MAY
WANT TO CONSIDER
A major area of controversy among the Expert Work Group was the relationship
between those circumstances in which reasonable efforts are not required and the grounds
for termination of parental rights under State law. At issue was whether the criteria for
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page III- 1
not requiring reasonable efforts should be the same as certain grounds for the termination
of parental rights. States need to consider and carefully debate this area.
The majority of the group thought that the two legal questions (to deny reasonable
efforts or to terminate parental rights) were separate and should have their own criteria.
A minority felt that certain grounds for the termination of parental rights — i.e., most of
those termination grounds that do not require reasonable efforts — should be criteria for
denying reasonable efforts. Whether or not there is a link between grounds for
termination and criteria for not requiring reasonable efforts, the State needs to make
certain that parents who can benefit from services will actually receive them and that
parents' rights to due process are fully honored.
An additional area of controversy among the Expert Work Group related to
additions to the criteria listed above. Several additional suggestions received some
support within the Expert Work Group but were opposed by the majority. States
considering such possible additions should approach them with caution, allowing
thorough debate concerning their practical implications. The legislature should be
convinced that any criteria it enacts for not requiring reasonable efforts will apply only in
situations where reunification services clearly cannot help parents improve within a
reasonable time. The following are the additional minority suggestions:
1. The parent had minimal contact or communication with the child for the
previous three months for a child under three or for the previous six
months for a child three or older, although the parent had the ability and
opportunity to maintain such contact.
This involves cases of abandonment and extreme parental disinterest in which
parents can be identified and located. Compare criterion e, above.
2. An unmarried father of an infant less than one year old has failed to visit
the child, establish paternity, or provide financial support within 30 days
after becoming aware of the child's birth; or did not attempt to seek
custody within 30 days after becoming aware that the child was placed
into foster care, although the father was informed of the opportunity to
seek custody.
This deals with cases in which an unmarried father fails to come forward and
either assume responsibility or assert paternity within a short time after a child's birth.
The majority of the Expert Work Group was concerned about the strictness of the time
requirements imposed on the unmarried father.
3. The child or a sibling was previously removed from home, returned home,
and subsequently reabused or reneglected although, before the most recent
incident, the agency had made appropriate and diligent efforts to preserve
the family. In addition, the underlying causes of the episode of abuse or
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page III- 1 1
neglect following the child's return were similar to the causes of the abuse
or neglect occurring before the child was removed from home.
This deals with cases in which the agency has already made reasonable efforts to
preserve the family, but in response to maltreatment of the child's sibling or in
comiection with a much earlier incident involving the same child.
4. The parent is addicted to drugs or alcohol, causing the parent to abuse or
neglect the child, and prior to the child welfare agency's involvement, the
parent has repeatedly refused or failed to complete drug or alcohol
treatment.
This deals with the situation where, prior to child welfare agency involvement, the
parent has already repeatedly refused or failed substance abuse treatment. The idea
behind this suggestion is that if other agencies have already made their repeated best
efforts to help, there is nothing more that the child welfare agency can do. The majority
view is that when a parent is first threatened with loss of rights to a child, this often
provides a new and more powerful motivation for the parent to stop or control the
substance abuse.
5. The parent has an emotional or mental incapacity so severe that the parent
cannot care for the child, taking into account the particular needs and
condition of the child. There is no known course of treatment that can
prepare the parent to care adequately for the child.
This deals with the situation in which a parent abuses or neglects the child due to
a mental or emotional incapacity and the incapacity is so severe that there is no known
treatment that can make it possible for the particular child to be returned home within a
reasonable time. The idea behind this ground is that if mental health agencies have
already made their repeated best efforts to help and the prognosis is poor, there is nothing
more that the child welfare agency can do to prepare the parent to care for the particular
child. The majority view is that psychiatry and psychology are not exact sciences and
that there is danger of inaccurate diagnoses.
6. The child's parent has made no arrangements for the care of the child and
the parent will be imprisoned for at least two years if the child is under
three, three years if the child is under six, and four years if the child is six
or older.
This would excuse the agency from making reasonable efforts to preserve the
family where the parent has not made appropriate arrangements for care of the child (e.g.,
with relatives) and the parent will serve a long term of imprisonment, taking into account
the age and needs of the child. The idea behind paragraph 5 is that, where the child is
facing a long stay in foster care, the needs of the child for a permanent placement take
precedence over parental rights. The majority noted that paragraph 6 includes situations
in which there is not history of abuse or neglect prior to imprisonment and emphasized
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page III- 1 2
that, in many cases, the parent-child relationship can be preserved through ongoing visits
and contacts while the parent remains in prison.
8. Procedure for Determining Whether There Have Been Reasonable Efforts to
Preserve the Family or to Finalize a New Permanent Home: We recommend
that State law require that:
a. The agency should submit a sworn statement prior to any judicial
hearing in which the court is to determine whether there have been
reasonable efforts to prevent placement, reunify the family, or make
and finalize a new permanent home for the child. This statement,
which should be submitted to the court and the parties at least 5 days
in advance of the hearing, should describe the reasonable efforts made
by the agency or the rationale for not making such efforts.
b. Following the hearing, the court will determine whether or not the
agency made reasonable efforts and enter brief findings describing
the efforts.
Commentary
To ensure careful judicial deliberation concerning reasonable efforts, it is
important to design a process which takes into account the agency's capacity to prepare
substantive material in a timely manner and the time the court needs for review and
deliberation. A report from the agency, submitted well in advance of the hearing, allows
the parties to consider carefully whether reasonable efforts were made. If appropriate, it
also allows them to introduce other evidence. A sworn statement helps ensure the
accuracy of the report. This recommendation also appears in the Resource Guidelines:
Improving Court Practice in Child Abuse and Neglect Cases. (The Resource Guidelines
were first published by the National Council of Juvenile and Family Court Judges
(NCJFCJ) in 1995 and have been endorsed by NCJFCJ, the American Bar Association,
and the Conference of Chief Justices.)' Equally important is a careful thought process by
the judge. The preparation of findings helps ensure thorough judicial deliberations. The
findings also provide an authoritative record concerning the agency's efforts. This record
can be invaluable in later hearings, including hearings on whether to return the child
home or whether to terminate parental rights.
Much of the content of this Guideline is also covered in Chapter IV, Court
Process, in the discussion of disposition, review, and post-termination of parental rights
review hearings.
9. Procedure for Finding that Reunification Services Are Not Required: We
recommend that at any time, upon motion of any party or on the Court's
* Copies of the Resource Guidelines were distributed to the E.xpert Work Group, along with various journal
articles and other publications selected as background material for review and discussion in the work group
or plenary sessions.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page III- 1 3
own motion, State statutes or court rules authorize the court to determine
that reunification services are not required.
Commentary
The Guidelines recommend allowing any party to file a motion, at any time,
asking the court to find that the criteria for not requiring reunification services are met.
Such a motion might request the finding with regard to one or both parents. Thus, the
State or child's attorney might choose to file directly for termination of parental rights at
the beginning of a case. Or, after a period of reunification services, one party or another,
or the court on its own motion, could move to suspend such services and move to
termination of parental rights, guardianship or some other permanent plan for the child.
Chapter VI, Termination of Parental Rights, recommends that a petition for the
termination of parental rights may be filed at any time. Related matters such as a
permanency hearing, a motion to excuse reunification services, or a petition for
termination of parental rights should be consolidated and heard together to avoid
duplicative proceedings.
Agencies and courts need enough information, early in each case, to determine
whether circumstances exist in which reunification services are not required. Legislation
may be necessary, for example, to authorize or require checks of parental criminal records
when they have abused or neglected their children. It might be needed to allow agencies
to review parents' mental health records and other background information, and to allow
agencies to obtain speedy court orders, when necessary, to gain access to this
information.
When an abused or neglected child enters foster care, the parties and the judge
should routinely consider the possibility that reunification services might not be
appropriate. Legislation or court rules may, for example, assure that parents are
consistently asked whether they want reunification services. They may encourage parties
to say (or judges to ask) whether reunification services should be required; specify at
what stage these questions should routinely be asked; and authorize the judge to require
further information to aid in a decision on whether reunification will be required.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page III- 1 4
Publications
ABA Center on Children and the Law. Reasonable Efforts Advisory Panel Meeting.
Washington. DC: ABA Center on Children and the Law, 21, April 1995.
Alsop. R. "Reasonable Efforts Requirement in Protective Services Policy." Protecting
Children 6 (2): 3-6 (Summer 1989).
Bailey. C. "The Truth About the Diversion Project." Juvenile and Family Justice Today
5 (4): 6-8 (Winter 1997).
Barth. R.P. " Family Reunification." Child Welfare Research Review, Volume II. New
York, NY: Columbia University Press, 1997, pp. 219-228.
Barthel, J. For Children 's Sake: The Promise of Family Preservation. New York, NY:
Edna McConnell Clark Foundation, 1992, pp. 67-77.
Berry, M. "Adoption in an Era of Family Preservation." Children and Youth Services
Review, 20 (1-2): 1-1 2 (1998).
Castner, S. F. "The Amendment to the Adoption Assistance and Child Welfare Act of
1980 — Preserving Our Most Valuable Resource." Valparaiso University Law Review 24
(1):1 11-146 (Fall 1989).
Child Welfare League of America. CWLA Standards of Excellence for Services for
Abused or Neglected Children and Their Families. Washington, DC: Child Welfare
League of America, 1998.
Citizens for Missouri's Children. A Roundtable Discussion of Fifteen State-Based Child
Advocates on Family Preservation Services. St. Louis, MO: Citizens for Missouri's
Children, 1991.
Dodson, G.D., and Hardin, M. On-Time Services to Preserve Families: A Guide for Child
Protection Agency Administrators and Policy Makers. Washington DC: ABA Center on
Children and the Law, 1997.
Edwards, L.P. Letter to Richard O'Neil, Director of the Department of Family and
Children's Services. San Jose. CA. December 6, 1989.
Gelles. R.J. "The Doctrine of Family Reunification: Child Protection or Risk?" The
APSAC Advisor 6 (2): 9-1 1 (Summer 1993).
Gelles, R.J. The Book of David: How Preserving Families Can Cost Children 's Lives.
New York, NY: Basic Books, 1996. Distributed by Basic Books, A Division of
HarperCollins, 10 East 53rd Street, New York, NY 10022-5299.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page III- 1 5
Goodman, S., and Hurley, J. Reasonable Ejforts: Who Decides What's Reasonable?
Washington, DC: Office of the Assistant Secretary for Planning and Evaluation (DHHS),
August 1993. Distributed by the Department of Health and Human Services, Office of the
Assistant Secretary for Planning and Evaluation (DHHS), Washington, DC.
Hardin, M. Establishing A Core of Services for Families Subject to State Intervention.
Washington, DC: ABA Center on Children and the Law, 1992.
Herring, D.J. "Inclusion of the Reasonable Efforts Requirement in Termination of
Parental Rights Statutes: Punishing the Child for the Failures of the State Child Welfare
System." University of Pittsburgh Law Review 54 (1): 139-209 (Fall 1992).
Kent Juvenile Court Reasonable Efforts Project Staff. Steps for Preserving Families:
Guidelines for Practice. Grand Rapids, ML 1989.
Kusserow, R.P. Barriers to Freeing Children for Adoption. Washington, DC: The U.S.
Department of Health and Human Services, February 1991.
Ladd, W.E. "The Untreatable Family: When Are Rehabilitative Services Inappropriate?
A Short Review of the Literature." Michigan Child Welfare Law Journal 1 (l):51-52
(Summer 1996).
McCarthy, D. "Anticipated Effects of New Procedural Rules and Statutory Changes in
Child Abuse and Neglect Cases." West Virginia Law 14:14 (July 1997).
McCroskey, J., and Meezan, W. "Family-Centered Services: Approaches and
Effectiveness." The Future of Children, Protecting Children from Abuse and Neglect 8
(1): 54-71 (Spring 1998).
McDonald, H. "The Ideology of Family Preservation." The Public Interest 115: 45-60
(Spring 1994).
National Center for Youth Law. Making Reasonable Efforts: Steps for Keeping Families
Together. San Francisco, CA: National Center for Youth Law, National Council of
Juvenile and Family Court Judges, Child Welfare League of America, and the Youth Law
Center, 1987.
National Center for Youth Law. " Reasonable Efforts to Prevent the Necessity for Foster
Care Placement: An Important Mandate of Pub. L. No. 96-272." Clearinghouse Review :
1394-1398 (April 1985).
National Council of Juvenile and Family Court Judges. Children and Families First: A
Mandate for America 's Courts. Reno, NV: National Council of Juvenile and Family
Court Judges. 1995, pp. 3-4.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page III- 1 6
National Council of Juvenile and Family Court Judges. Protocol for Making Reasonable
Efforts to Preserve Families in Drug-Related Dependency Cases. January 1992.
National Council of Juvenile and Family Court Judges. Reasonable Efforts Training
Video-Notebook. 1991.
National Council of Juvenile and Family Court Judges. Resource Guidelines: Improving
Court Practice in Child Abuse and Neglect Cases. Reno, NV: National Council of
Juvenile and Family Court Judges, 1995.
Nelson, D. Recognizing and Realizing the Potential of "Family Preservation. "
Washington, DC: The Center for the Study of Social Policy, 1988.
Robinson, S. State Child Welfare Reform: Toward a Family Based Policy. Denver, CO:
National Conference of State Legislators, August 1997.
Shotton, A.C. "Making Reasonable Efforts in Child Abuse and Neglect Cases: Ten Years
Later." California Western Law Review 26 (2): 223-256 (1989-90).
Tamilia, P.R. "A Response to Elimination of the Reasonable Efforts Required Prior to
Termination of Parental Rights Status." University of Pittsburgh Law Review 54:21 1
(Fall 1992).
U.S. Department of Health and Human Services, Children's Bureau. National Study of
Protective, Preventive and Reunification Services Delivered to Children and Their
Families. Washington, DC: Government Printing Office, 1994.
Guidelines for Public Policy and Stale Legislalion Governing Permanence for Children Page 111-17
CHAPTER IV: COURT PROCESS
INTRODUCTION
To produce sound legal decisions for allegedly endangered children, the court process
should be timely, thorough, careful, and meticulous. Above all, the court process must be fair to
the child and the parents.
While State legislatures play an important role in assuring the fairness of court
proceedings for abused and neglected children, the degree of State legislatures' involvement
varies. For example, based on the State constitution and the relationship between the legislature
and the courts, it may be appropriate in one State for the legislature to enact a comprehensive
timetable governing all phases of the court process in child abuse and neglect cases. In another
State, however, the legislature might more appropriately request that the court establish such
timetables using its rule-making authority. Still another legislature might provide funding for
courts to experiment with some of the reforms set forth in these Guidelines for Public Policy and
State Legislation Governing Permanence for Children and the Resource Guidelines: Improving
Court Practice in Child Abuse and Neglect Cases. [As indicated in Chapter II: Legal Options for
Permanency, the Resource Guidelines were first published by the National Council of Juvenile
and Family Court Judges (NCJFCJ) in 1995 and have been endorsed by NCJFCJ, the American
Bar Association, and the Conference of Chief Justices.]
Many recommended Guidelines in this chapter may be implemented either through State
statutes or court rules. Deciding what to include in legislation as opposed to court rules
depends, in part, upon what can properly be addressed through court rules under a particular
State constitution. (For a general discussion of this issue and citations to relevant authorities, see
generally, M. Hardin & A. Shalleck, Court Rules to Achieve Permanency for Foster Children:
Sample Rules and Commentary 3-5, ABA 85.)
GUIDELINES AND COMMENTARY
GUIDELINES FOR COURT STRUCTURE AND RESOURCES
1. Goals of Court Process: We recommend that State law specify the following goals of
the court process in child welfare cases. First, court process should protect the
health and safety of endangered children. And second, court process should ensure
the timely placement of each child in a safe, stable, and permanent home.
Commentary
State law should make clear the overall goals of the court process in child abuse and
neglect cases. It should be clear to judges, advocates, and parties that the law is to be interpreted
to achieve the goals of child health, safety, and permanence.
Guidelines for Public Policy and State Legislation Governing Prmanence for Children Page IV- 1
2. Support Improvements in Court Organization: We recommend that State legislatures
ensure that courts handling child abuse and neglect cases are well organized to
achieve the goals of child safety, permanency, and health.
Commentary
The quality of the judicial decision-making process depends, to a large extent, on
characteristics of judicial organization and structure. For example, it is important that the same
court (and judge) hears all stages of a child abuse or neglect case. It is equally important that
judges and attorneys receive specialized training concerning child welfare cases; that there are
comprehensive deadlines governing the court process; and that the judiciary and bar handling
child welfare cases are specialized in child welfare or other family matters. It is essential that
adequate resources are available to the courts, including adequate staffing levels forjudges and
attorneys in child protection cases.
State legislatures can either determine or have a major influence on each of these issues.
In many States, legislatures establish deadlines for several stages of the court process and enact
laws affecting court procedure.
3. Establish Time Frames for Entire Court Process: We recommend that State law
ensure that appropriate time frames guide each stage of the case by:
a. Setting comprehensive timetables for all stages of the case;
b. Setting strict limits on continuances and extended interruptions of court
hearings;
c. Requiring monitoring of agencies' and courts' adherence to timetables; and
d. Providing that child protection cases are not to be delayed to await resolution
of related criminal proceedings, except based on unusual circumstances.
Commentary
One of the most profound and intractable problems in child welfare litigation is that of
delay. Overcoming this problem requires specific and tight deadlines for decision-making and a
process for enforcing those deadlines. It is the responsibility of the legislature to make sure that
deadlines are inclusive and lack overly broad loopholes.
Depending on the laws and constitution of each State, there are different ways to
approach this problem. In many States, the legislature should set the deadlines for each hearing,
including every step of the court process. In other States, the legislature might perform this
function by asking the court to set such deadlines and by reviewing proposed court rules.
An important part of establishing timetables is setting limits on continuances and interruptions of
hearings. While short continuances are sometimes necessary and appropriate, it is critical that
judges not grant them routinely or too easily. In some courts, parties can easily waive deadlines,
judges are permissive in accepting excuses for delays, and court staff organizes dockets so that
contested hearings are frequently interrupted for weeks or months.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page IV-2
State court systems should monitor courts' compliance with mandatory time lines and
should make public reports of their findings. Monitoring and public reports of courts'
compliance with time lines in children's cases are recommended as a means to implement this
Guideline. In Michigan, for example, statutes set specific time requirements and a recent statute
requires the State Court Administrative Office to produce an annual report detailing courts'
compliance with the time lines in child protection cases. (Mich. Comp. Laws Ann. §712A.22,
1998.)
In summary, these Guidelines recommend the following timetable for child protection cases:
Emergency Removal to Preliminary
Protective Hearing and filing of
Petition
[24] or [72] hours
Additional Hearing if party is not
present at Preliminary Protective
Hearing
seven days after Preliminary Protective
Hearing
Pretrial Conference
Timely
Adjudication
Within 60 days after Petition is filed
Disposition
Within 30 days after Adjudication
Review Hearings
Every 90 days after Disposition
Permanency Hearing
12 Months from removal
Termination of Parental Rights:
Filing Petition
Any time when grounds exist
Within 30 days of Court Order at
Permanency Hearing
Hearing
Within 90 days of filing
Decision by Court
Within 14 days of beginning of TPR Hearing
Post TPR Reviews
Every 90 days from TPR until permanent
placement
Guidelines for Public Policy and State Legislation Governing Permanence for Children
Page IV-3
Child protection cases should not be delayed routinely pending resolution of parallel
criminal prosecutions. Delaying the child protection adjudication (trial) slows the later stages of
the case and ultimately delays the achievement of a safe and permanent home for the child.
Experience in many jurisdictions has shown that it is possible to complete the child protection
adjudication first, without prejudicing or interfering with the criminal trial. (See Sprague &
Hardin, Coordination of Juvenile and Criminal Court Child Abuse and Neglect Proceedings, 35
Univ. of Louisville J. of Fam. Law 239, 281-300, 322, 1996.)
4. Same Judge and Attorneys throughout Case: We recommend that State law ensure
that, when practical:
a. One judge will hear the entire child protection proceeding from initial
removal through ultimate discharge from court jurisdiction, including
termination of parental rights and adoption proceedings.
b. The same legal representatives for the child, parent, and State will remain
involved during all stages of the proceeding.
Commentary
In States where the legislature can define the jurisdiction of different courts and
determine the structure of the court system, the legislature is in a strong position to ensure that a
single judge will hear all stages of each child welfare case.
There are several important reasons for a single judge to hear all stages of the case. First,
because the judge makes all major judicial decisions in each case, the judge acquires a greater
sense of responsibility for the case outcome including achieving timely and permanent placement
for the child. Second, because the judge hears all parts of a case, the judge is more fully
informed of the facts of the case. Third, because the case stays with the same judge, it is easier
to develop a stable case plan. Fourth, parties are more likely to obey court orders knowing they
will return to the same judge. Fifth, because the judge knows the case better, parents and their
attorneys are less able to use the same arguments or excuses more than once. Sixth, parties feel
more connected to the judge because they always come before one person. Seventh, because the
judge is able to experience the unfolding and development of each case, the judge can more
rapidly learn about child protection law and practice. The principle of one judge hearing all
stages of a case is recommended by the Resource Guidelines (p. 19).
Due process considerations do not prevent a single judge from hearing all stages of a
child protection case. First, judges are deemed to have the ability to base their decisions only on
material and competent evidence. Second, there are many other types of legal proceedings
where a judge makes preliminary decisions and is later permitted to make final decisions in the
same case. As the United States Supreme Court noted in Winthrow v. Larkin:
Judges repeatedly issue arrest warrants on the basis that there is probable cause to believe
that a crime has been committed and that the person named in the warrant has committed
it. Judges also preside at preliminary hearings where they must decide whether the
evidence is sufficient to hold a defendant for trial. Neither of these pretrial involvements
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page IV-4
has been thought to raise any constitutional barrier against the judge's presiding over the
criminal trial and, if the trial is without a jury, against making the necessary
determination of guilt or innocence. Nor has it been thought that a judge is disqualified
from presiding over injunction proceedings because he has initially assessed the facts in
issuing or denying a temporary restraining order or a preliminary injunction.
421 U.S. 35.56. 1975.
Another example is temporary and final custody decisions in divorce cases. Still another
is a judge who hears civil and criminal proceedings involving the same facts.
While the Expert Work Group unanimously approved the principle of judicial continuity
in general, a minority thought that this principle should not necessarily include termination of
parental rights hearings. Some members said that judges who have heard the earlier stages of a
case should be able to excuse themselves from the termination hearing if they feel unable to
make an unbiased decision at termination. Others agreed that a judge might appear biased if he
or she had been warning the family about possible consequences for failing to improve their
situation. Sometimes a judge cannot hear all stages of a single case. For example, a judge may
become ill or otherwise require unexpected leave; it may make sense to allow another judge to
hear an already scheduled review hearing instead of waiting for the leave to end. Or when a
family moves from one jurisdiction to another, both courts might properly agree to transfer the
case to the jurisdiction in which the family currently resides. Also, in jurisdictions where
masters or hearing referees hear the initial removal hearing on an emergency basis after hours or
on weekends, it may not be practical for the same master or referee to hear subsequent stages of
the same case. Finally, the Indian Child Welfare Act may require a case involving an Indian
child to be removed to a tribal court. (25 U.S.C. §§1903, 1911.)
It is also important that the same legal representatives for the child, parent, and State
remain involved throughout the case. When the same attorney remains involved in all stages of
the trial, the attorney will be more responsible and accountable for the case and better able to
master the applicable facts and law of the case. Legislatures can help avoid transfers among
attorneys in the same case through how they structure legal representation. For example, they
can eliminate systems in which one legal office (e.g., a local office) represents the State in the
early stages of the child welfare case and another represents the State in the termination of
parental rights and adoption. The principle of continuous legal representation is also
recommended by the Resource Guidelines (p. 22).
5. Ensure Adequate Judicial Resources: We recommend that State legislatures ensure
that the courts have the capacity to:
a. Establish reasonable caseloads for judges and judicial staff in child welfare
cases;
b. Provide reasonable compensation for judges and court staff in child welfare
cases;
c. Train judges and court staff in child welfare litigation;
d. Ensure competent legal representation for the State, children, and parents
who are unable to afford counsel;
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page IV-5
Encourage trained volunteer court appointed special advocates for each child
by setting up child advocacy offices in each locale;
Develop child welfare judicial information systems and other forms of self
evaluation to measure court performance for case management and track
individual cases; and
Provide translators to ensure that parties can fully understand court
proceedings and can communicate with counsel both inside and outside of
court.
Commentary
While improved statutory decision-making criteria and procedures can be very helpful in
child abuse and neglect cases, their effect will be limited without providing adequate staff and
support to the courts. For many years, Congress and State legislatures have imposed additional
duties on State court systems without providing the additional staff and financial supports that
are needed to perform those duties. (See, e.g., M. Hardin, Responsibilities and Effectiveness of
the Juvenile Court in Handling Dependency Cases, The Future of Children, Volume 6, 111-125,
1996.) To achieve real reform in the court process, it is also necessary to provide funding and
supports that will make it possible for courts to fulfill both the spirit and letter of legislative
mandates.
For example, to achieve timely and fair decisions in child abuse cases, judicial caseloads
must be low enough so that hearings can be set without undue delay and can last long enough to
permit fair deliberations in each case. Judges must have staff who can monitor and measure
court delays, set hearings within deadlines set by statute or court rule, and help the judge prepare
proper notices and findings. Courts must have the equipment to prepare court orders and notices
efficiently and to operate information systems which help them analyze their workloads,
performance and outcomes, and the efficiency of the court process. Attorneys must have
reasonable caseloads and adequate support staff, and equipment so they can properly prepare
each case before going to court and comply with the court's deadlines. Volunteer court
appointed special advocates for children (CASAs) must have sufficient training and staff
support. In pursuit of the goal to have a CAS A for every child. State legislatures should
establish CASAs in every jurisdiction. There must be translators to ensure that parties fully
understand the proceedings and are able to communicate with legal counsel outside of court
hearings. On the other hand, if the legislature is to provide additional resources to improve child
abuse and neglect proceedings, it is reasonable to expect the court system to provide certain
assurances. In exchange for such resources, the court system should commit itself to devoting
resources specifically to improving child abuse and neglect proceedings. The courts should also
agree to measure and report on the impact of the additional resources.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page IV-6
GUIDELINES FOR EMERGENCY PROTECTION AND INVESTIGATIVE ORDERS
6. Ex Parte Orders to Protect Children: To ensure children's safety, we recommend that
State law empower the court to enter ex parte orders on an emergency basis
authorizing law enforcement or agency personnel to do the following without prior
notice to a child's parent:
a. Remove a child from home or expel alleged perpetrators from the home
when necessary to protect a child from risk of imminent harm.
b. Gain entry into a home, observe a child, or transport a child for medical
examination, either to protect the child from risk of imminent harm or to
avoid a possible loss of important evidence.
Commentary
State child welfare and law enforcement agencies are often faced with severe
emergencies that require immediate action to protect children from injury or trauma. Agencies
need the authority to act promptly in such situations.
On the other hand, when possible, there should be prompt judicial oversight of agency
decisions to remove children from their homes or to expel alleged perpetrators. To achieve
prompt oversight, judicial officers should be available 24 hours a day to review agency requests,
including requests by telephone. With such oversight available, it should be necessary only in
the most extreme emergencies for agency workers or law enforcement officers to take forcible
action without prior court authorization.
In many States, child welfare and law enforcement agencies have no authority to enter a
home or examine a child without parental permission unless they also take a child into custody
and file an abuse or neglect petition. Where there is reason to believe that a child may be abused
or neglected but there is not a sufficient emergency to justify the immediate removal of the child,
it should be possible to obtain judicial authority to enter the home, observe the child, and, if
necessary, take the child for a medical examination. (See Hardin, Legal Barriers in Child Abuse
Investigations: State Powers and Individual Rights, 63 Wash. L. Rev. 493, 544-48, Slli-ll,
1988.) Under a court order authorizing these actions, the agency would be required to return the
child immediately if no evidence is uncovered showing that the child in fact has been abused or
neglected.
7. Consider Possible Alternatives to Emergency Removal: We recommend that State law
require that, in making a decision to authorize emergency removal of a child, the
court should consider whether services are currently available that could protect the
child without removal.
Commentary
In deciding whether to remove a child from home in an emergency situation, the court
should consider not only the degree of danger to the child, but possible means to eliminate the
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page IV-7
danger without removal. Of course, the judge should not be expected to accept services as an
alternative to removal unless it is clear that services will eliminate the danger and that the
services are available and in place.
8. Evidence for Ex Parte Orders: We recommend that State law provide that a court
may authorize emergency removal of a child, emergency expulsion of alleged
perpetrators, or access to essential evidence based on probable cause. The court
may consider all trustworthy and credible evidence, including hearsay, without
prior notice to the parent.
Commentary
In an emergency decision made without prior notice to parents, courts must be able to
rely on hearsay evidence. It is usually not practical to obtain and provide first hand-testimony in
an emergency situation. This is also the case, for example, when law enforcement agencies
obtain search warrants in criminal cases.
GUIDELINES FOR PRELIMINARY PROTECTIVE HEARING
9. Deadline for Preliminary Protective Hearing: We recommend that State law require
a preliminary protective hearing within 24 - 72 hours of a child being removed from
home or a suspected perpetrator being expelled from the home.
Commentary
A preliminary protection hearing is the hearing in which the court decides, following the
child's emergency removal from the home, whether the child may return home prior to the
adjudication. It is referred to in some jurisdictions as a "shelter care hearing," "detention
hearing," or "temporary custody hearing." It is usually the first court hearing in a child abuse or
neglect case.
All States require such a hearing within a short period of time after a child has been
removed from home without a prior hearing. This should also be available if a perpetrator has
been removed from the home in an emergency situation.
Alternative time limits are suggested for the preliminary protective hearing. Some
jurisdictions are able to hold the hearings within 24 hours of placement, while others, particularly
those in rural areas, require more time. Some jurisdictions with short time limits like 24 hours
exclude weekends and holidays. States should set as short a time limit for preliminary protective
hearings as is practical for their courts and agencies, but not longer than 72 hours.
10. Filing, Dismissal, and Amendments of Petitions: We recommend that State law
require that: (a) the petition be filed on or before the preliminary protective
hearing; (b) the case be dismissed unless the petition states a basis for court
Guidelines for Public Policy and Stale Legislation Governing Permanence for Children Page IV-8
intervention and is supported by probable cause; and (c) the State can orally amend
the petition based on the evidence presented at the preliminary protective hearing.
Commentary
This Guideline is designed to encourage courts to screen child abuse and neglect cases
more carefully during the preliminary protective hearing. To assist the court in determining
whether there is a basis for intervention, a petition must be filed by the time of the hearing.
Then, the person filing the petition must show that the petition states a case for State intervention
and that sufficient evidence exists to proceed further. To avoid dismissals based on pleading
technicalities, the petition may be orally amended at the preliminary protective hearing, based on
the evidence.
11, Removal of Child at Preliminary Protective Hearing: We recommend that State law
authorize the court, at the preliminary protective hearing, to order the child to be
removed or remain away from home if:
a. Leaving the child in the home may cause the child's death, physical injury, or
emotional trauma or may cause the elimination of important evidence; and
b. There are no available services or safeguards that can eliminate such risk if
the child is placed in the home, even if the court orders such services or
safeguards.
Commentary
Removal of a child from home is a drastic step which can traumatize children. It should
not be authorized unless the danger is significant and there is no other realistic safe alternative.
Because alternatives to removal are a lesser intrusion on family life and less disruptive to the
child, the judge should be empowered to order the parties to provide services or take other steps
necessary to keep the child safely at home.
12. Findings at Preliminary Protective Hearing if Child is Removed: We recommend that
if the court removes a child pending adjudication the judge enter brief findings
describing the risk to the child. The findings should also state why available
services cannot help the child remain safely at home, and explain whether or not the
agency made reasonable efforts to prevent placement.
Commentary
Because of the seriousness of the decision to remove a child from a dangerous situation,
there should be brief findings explaining the judge's decision. The findings serve two purposes:
(a) they encourage the judge to deliberate carefully concerning the removal decision, and (b)
they provide a record describing the precise facts underlying the judge's decision. The Federal
requirement that the judge decide whether the agency has made reasonable efforts to prevent
removal is discussed elsewhere. (See Chapter III, Reasonable Efforts to Preserve Families and
Achieve Permanency for Children.)
Guidelines for Public Policy and Slate Legislation Governing Permanence for Children Page IV-9
Several steps are needed to help the judge to enter appropriate findings. First, court
forms should be designed to help judges prepare the findings. Second, agencies should file brief
reports that include the precise types of information needed by the judge to prepare the findings.
Third, the hearing must be long enough to allow the parties to give testimony and for the judge to
prepare findings. Such a hearing must last longer than most current emergency removal
hearings. Emergency removal hearings are too often cursory and without meaningful procedural
protections for the parties. The Resource Guidelines recommend 60 minutes for routine
preliminary protective hearings (p. 42).
In many courts, judges, attorneys, and caseworkers have become used to court
proceedings that do not carefully examine the nature of the emergency and alternatives to
removal. As stated in a prior Guideline, the court needs adequate resources to set aside a proper
amount of time for this critically important hearing.
13. Orders to Protect the Child Against Alleged Abuser: We recommend that State law
authorize the court to bar a person who allegedly abused or severely neglected the
child from entering, or remaining in, the child's home. The court should also be
authorized to order parents and other adults living there to take specified steps to
protect the child.
Commentary
Courts should be empowered to remove children from home, and also to take steps that
are less drastic and less traumatic to the child. Such steps include removing the alleged
perpetrator rather than the child from the home and requiring other caretakers to take specific
actions to protect the child. A person excluded from the home who also is a party in the case is
neither excluded nor excused from working with the agency and participating ftirther in the court
process.
14. Diligent Efforts to Notify Parents: We recommend that State law direct the court to
ensure that diligent efforts are made to notify parents. These efforts should include:
a. Identifying both parents, including putative fathers, locating them, notifying
them of the preliminary protective hearing, and helping them to attend.
b. Continuing diligent efforts to locate any parents who do not appear at the
preliminary protective hearing, to obtain service of process, and to inform
them about the proceedings.
Commentary
A key to successful permanency planning is to involve both parents in the court
proceedings from the beginning. This requires notice and service of process on all parents. If
the non-custodial parent is not located and served early and if efforts to work with the custodial
parent are unsuccessful, agencies must begin their work with the non-custodial parent late in the
case. This can extend the time the child remains in foster care and postpone the child's
placement into a permanent home.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page IV- 1
If parents are not present at the preliminary protective hearing, the court should ask
detailed questions concerning why this is so and what the agency has done to try to get parents in
court. When necessary, the judge should order the agency to take further specific steps to locate
and notify missing parents.
If possible, putative fathers should be located, served, and tested for paternity before the
adjudication hearing. This allows the court to resolve the issue of paternity at the adjudication.
While the court should require diligent steps to complete paternity testing by adjudication, the
adjudication hearing should not be delayed when testing has not been completed. In that case,
the court should direct the child welfare agency and child support enforcement agencies to take
continued steps to resolve the question of paternity as soon as possible. The Federal Adoption
and Safe Families Act of 1997 (ASFA), §105, provides for the use of the Federal parent locator
services to locate missing parents.
Where a missing parent is known not to be fluent in English or where persons who may
know that person's location are not fluent in English, it is important that a person fluent in the
parent's native language participate in the search. It also may be helpfiil in locating a parent that
persons conducting the search understand enough about the parent's cultural background to
know how to make culturally appropriate inquiries.
15. Consider Alternatives to Removal of Child from Home: We recommend that State law
require the judge, when authorizing removal of the child from home or continued
placement outside the home, to:
a. Consider the possibility of placing the child with members of the extended
family; and
b. Ensure that the agency promptly locates and considers extended family
members as possible caretakers of the child.
Commentary
42 U.S.C. §671(a)(19) allows States to consider giving preference to qualified adult
relatives over non-related caregivers when placing abused and neglected children in
circumstances where these relatives can meet the safety needs of the child. To put this policy
into effect (and thus reduce trauma to children from avoidable changes of placement), it is
important to consider relatives at the beginning of court intervention.
The first stage of the court process to address this issue is the preliminary protective
hearing. If relatives are located later in the case, agencies and courts are forced to choose
between the relatives and unrelated caretakers who may have developed close emotional bonds
with the child. Ohio law requires the court to consider placement of the child with relatives
during Ohio's equivalent of the preliminary protective hearing, and if placement with a relative
is inappropriate, the court is to enter written findings to that effect. [Ohio Rev. Code Ann.
§2 15 1.3 14(B)(2), 1997.]
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page IV- 1 1
16. Orders at Preliminary Protective Hearing: We recommend that State law require
that, during the preliminary protective hearing, the judge decide what orders, if
any, are needed for temporary visitation with parents, relatives, or siblings. The
judge should also determine the need for temporary child support, physical or
mental examinations of the child and parents, and restraining orders and other
protective orders. In addition, the judge should identify the importance of locating
and notifying missing parties and relatives, including unwed fathers; paternity
testing; and other relief necessary to meet the needs of the child and cause an
efficient and expeditious completion of the court process.
Commentary
To achieve a timely court process for abused and neglected children, court proceedings
must address issues and make decisions quickly. A thorough preliminary protective hearing can
help accelerate the legal process without compromising fairness and careful decision-making.
17. Representation of Parties at Preliminary Protective Hearing: We recommend that
State law guarantee that parties be represented by counsel at the preliminary
protective hearing and that both counsel and volunteer CASAs for children be
appointed in advance of that hearing.
Commentary
The preliminary protective hearing is a critical stage of the proceedings. At this hearing
the decision is first made whether or not to remove children from parents. The court may take
many other important steps at the hearing such as setting initial terms for visits and arranging for
evaluations. Yet, parties are often not represented by counsel and the hearing is brief and
cursory. Volunteer CASAs for children typically are not present. A fair process requires that
parties have legal representation and that attorneys be appointed before the hearing so they can
raise meaningful issues and assist their clients at the hearing.
GUIDELINES FOR ADJUDICATION
18. Deadline for Adjudication: We recommend that State law require that the
adjudication hearing take place as soon as possible but no later than 60 days from
the time that a child is removed from home.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page IV-12
Commentary
The term "adjudication" refers to the stage of the court process in which the court
determines whether the allegations of child maltreatment are supported by the evidence and meet
the statutory definition of child abuse or neglect. With this finding the court is legally entitled to
temporarily curtail parental rights to make decisions concerning the child's future. In some
States, the adjudicafion is referred to as the "trial," "jurisdicfional hearing," or "fact-finding
hearing". The adjudication hearing not only provides the court with the legal authority to proceed
in the case, but also provides notice to all parties and creates the definitive record of child abuse.
The timing and content of the adjudication order and findings and the parties who are brought
into the case all affect the child's timely opportunity to find a permanent home.
The 60-day time limit for adjudication hearings is also recommended by the Resource
Guidelines (p. 47). The 60-day period is recommended as an outside limit for adjudication with
a preference for an earlier completion of the hearing if possible. The main reason for a deadline
is that the earlier the adjudication, the sooner it is likely that a child will go home or be placed in
another permanent home. Until the court has formally determined whether a child has been
abused or neglected, parents may refuse to cooperate with the agency, blocking real progress
toward family rehabilitation.
Some members of the Expert Work Group thought that the 60-day deadline is too long,
noting that many jurisdictions successfially impose shorter deadlines. They agreed that in the life
of a child, 60 days is a very long period of time. Further, prompt completion of the adjudication
allows the agency to find a permanent placement for the child more quickly. Some jurisdictions
have successfully required adjudication in far less than 60 days.
Failure to meet the 60-day deadline should not, however, require that the case be
dismissed with prejudice, as would failure to comply with a speedy trial act in a criminal case.
Abused and neglected children should not be endangered to enforce a deadline. Rather, the State
must develop an alternative way of ensuring compliance. For example, the court system might
monitor and enforce compliance by State trial courts.
19. Service on All Parties: We recommend that State law require that all parties be
formally served, including the mother, legal father, putative fathers, and legal
guardians, if any.
Commentary
The Commentary to Guideline 14 explains the importance of serving all parties prior to
the adjudication. Parents should receive service of process in their native language when it is
known that the parent does not fluently speak and read English and it is practical to prepare
documents in the parent's language. The Indian Child Welfare Act, 25 U.S.C. §1912(a) requires
that, in the case of an Indian child, the court shall also give notice to the child's tribe.
20. Standard of Proof: We recommend that State law require that, at the adjudication
hearing, the court will determine, based on plea or testimony, whether the statutory
Guidelines for Public Policy and Stale Legislation Governing Permanence for Children Page IV- 1 3
grounds for court jurisdiction have been proved by a preponderance of the
evidence.
Commentary
The preponderance of evidence standard, the general civil standard of proof, is the most
typical among the States. The higher clear and convincing evidence standard is not
constitutionally required for an adjudication of child abuse or neglect that does not terminate
parental rights and is not recommended by these Guidelines. It is feared that requiring the higher
clear and convincing evidence standard would make it too difficult to protect a child in danger.
The unique history, Federal statutes, and political sovereignty of Native Americans,
however, justify a different legal standard for American Indian children. Clear and convincing
evidence is required to remove an Indian child from the home. [25 U.S.C. § 1912(e).] The clear
and convincing evidence must include testimony by qualified expert witnesses that services to
prevent the breakup of the Indian family have been fiamished. It must also show that continued
custody of the child by the parent or Indian custodian is likely to result in serious emotional or
physical damage to the child.
21. Findings at Adjudication: We recommend that State law require that, if the court
finds that the statutory grounds for court jurisdiction have been met, the court
should make specific flndings concerning how the child was abused or neglected.
Commentary
Findings of fact describing the parent's abuse or neglect comprise a critically important
record of the actual abuse or neglect. The findings should help define the terms of the agency
case plan, set a baseline against which progress is measured during review hearings, and
establish the facts of the original abuse or neglect for any subsequent termination of parental
rights hearing. (See Resource Guidelines (p. 47-48, 50.) As a matter of good practice, a judge
might, after taking admissions from a parent, ask the parent to describe the abuse or neglect in
his or her own words.
22. Determine Paternity at Adjudication: We recommend that State law provide that, if
putative fathers have been served and tested for paternity, the court should
officially determine paternity at adjudication. If not, the court should issue further
specific orders to complete these steps as soon as possible.
Commentary
The Commentary to Guideline 14 recommends that putative fathers be located and tested
for paternity, if possible, before adjudication. If paternity has been tested before the adjudication
hearing, the court can make a formal determination of paternity. If not, the court should, at a
minimum, order referral of the case to parent locator services and paternity testing.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page IV- 14
Early determinations of paternity can help shorten the time that children must spend in
foster care by allowing the agency to notify and begin work with the biological father early in the
case. If paternity is not determined, and work with the father does not begin early in the case, the
agency may be compelled to begin its work with the father late in the case. This can lengthen the
time the child remains in foster care and/or postpone the child's placement into a permanent
home.
GUIDELINES FOR DISPOSITION HEARING
23, Deadline for Disposition Hearing: We recommend that State law require the
disposition hearing to take place no later than 30 days after the adjudication, except
where special circumstances, documented in the court record, necessitate delay. If
the parties agree, the disposition hearing may take place immediately following the
adjudication.
Commentary
Disposition is the stage of the juvenile court process following adjudication in which the
court determines who will have custody and control of the child. Depending upon the powers of
the court under State law and the facts of the case, the court may also set the terms and
conditions of the child's placement. This should include approval or modification of the child's
case plan. This Guideline follows the recommendations of the Resource Guidelines (p. 55) as to
the timing of the disposition hearing.
24. Disposition Report and Case Plan: We recommend that State law require the
disposition report prepared by the State agency and the case plan to be filed and
sent to the parties at least 5 days before the hearing and to prescribe the list of issues
to be addressed. The report should address each issue, in similar language, that the
court is to address in its disposition orders and findings.
Commentary
By matching the format and content of the agency's predisposition report to those of the
court's disposition order and findings, agency reports will make it easier for the judge to prepare
the order and findings. At the same time, an agency report in convenient form for the judge is
more likely to be influential. For these reasons, these Guidelines recommend a nearly precise
match between the issues to be addressed in the court report and the issues to be addressed in the
disposition court order and findings. The Resource Guidelines and the ABA Sample Court Rules
to Achieve Permanency for Foster Children also recommend matching the content of
predisposition reports with disposition orders and findings.
The following is a list of topics that State law should require for the disposition report:
a. Recommendations for the custody and placement of the child;
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b. If placement at home is recommended, proposed conditions to be required of the
agency, parents, and other parties and the reasons for those conditions;
c. If out-of-home placement is recommended, an explanation of efforts to identify
and locate relatives and recommendations concerning such placement;
d. If out-of-home placement is endorsed, recommended terms of visitation
(including siblings and relatives, where appropriate) and child support;
e. A proposed case plan, including case goals, tasks, and timetables for parents
(when applicable) and agencies;
f. Recommendations, if appropriate, for restraining orders, orders to stay away from
the child or residence, domestic violence orders of protection, or other injunctive
relief; and
g. If out-of-home placement with a goal of reunification is recommended, a
statement regarding whether it is appropriate to pursue concurrent planning. The
statement should indicate whether such planning can be achieved by placing the
child with a relative or foster family willing to provide a permanent home for the
child in case reunification is unsuccessful. If such a placement is appropriate, the
statement should indicate what steps are needed to secure and stabilize such a
placement.
A key part of the court report is the proposed agency case plan for the child and family.
The case plan identifies the goals, tasks, and strategies to obtain a safe and secure home for the
child. It should guide the interventions by establishing that they are necessary to safely return
the child home. It should include a service plan for the child and family. Among other things,
the case plan needs to address how issues of language and culture that are important to the child
will be addressed.
Paragraph c creates an expectation that the agency will actively seek relatives as
placement alternatives for abused and neglected children. For example, a recent Michigan statute
requires the agency to identify, within 30 days of the first hearing, relatives potentially able to
meet the child's needs and then make a placement decision within 90 days. (Mich. Comp. Laws
Ann. §722.954a, 1998.)
Paragraph g asks the agency to consider concurrent planning in cases where the goal is
family reunification. Concurrent planning means trying to place the child in a relative's home or
foster home that is potentially a permanent home should reunification efforts fail. The Adoption
and Safe Families Act of 1997 (ASFA), §101(a), 42 U.S.C. §671(a)(15)(F), provides that
"reasonable efforts to place a child for adoption or with a legal guardian may be made
concurrently with reasonable efforts [to preserve the family]." Paragraph g calls for the agency
to make recommendations to the court, in each case, concerning whether it should place the child
with foster parents who are potential adoptive parents or permanent guardians. This discussion
should be guided by the prognosis for resolution of problems that brought the child into care.
25. Admission of Hearsay Reports at Disposition Hearing: We recommend that State law
allow hearsay reports to be admitted into evidence at the disposition hearing even if
they do not fall under a recognized hearsay exception under certain conditions.
These conditions are: (a) the report is furnished to all parties at least 5 days before
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page IV- 16
the hearing; (b) the report identifies its sources of information; and (c) parties have
the opportunity to subpoena and cross examine the sources of the hearsay
information at the disposition hearing.
Commentary
While use of hearsay information is appropriate in disposition hearings, in which the
court approves a plan for the child, fairness requires that the parties have a reasonable
opportunity to rebut the information contained in the report. Most States have statutes allowing
the admission of hearsay reports in disposition hearings. However, few set precise limits such as
those set forth in this Guideline.
This Guideline is consistent with the procedure approved in the U.S. Supreme Court case
Richardson v. Perales. 402 U.S. 389 (1971). While Richardson is a social security case, its
holding logically applies to disposition hearings in child abuse and neglect proceedings.
In Richardson, the Court upheld the use of hearsay doctors' reports in social security
administrative hearings to determine eligibility for social security disability payments. The
Court held that admitting the doctors' reports did not violate procedural due process because,
among other reasons, the claimant had advance notice of the doctors ' identities and the content
of their reports, the claimant had the opportunity to subpoena and cross examine the doctors,
and the claimant could have requested a supplemental hearing to cross examine the doctors. If
the reasoning of Richardson is applied in child welfare cases, most hearsay should be admissible
at disposition only if the parties have had a reasonable opportunity to subpoena and cross
examine the sources of the hearsay information.
26. Requirements for Disposition Hearings: We recommend that State law set forth a
comprehensive list of court actions, decisions, and findings that are to occur at
disposition hearings.
Commentary
Clear and detailed disposition orders set the framework for subsequent judicial case
review. With a strong disposition order, the frame of reference of the review can be whether the
parties have adhered to the order, and if so, whether there is adequate case progress. The
disposition hearing should also be coordinated with any internal agency review process.
The following is a list of decisions, findings, and actions that State law should require to
occur in the disposition hearing:
a. If the case is not dismissed, the court determines the custody and placement of the
child.
b. If a child is placed at home without dismissing the case, the court may specify any
conditions that will be required of the agency, parents, and other parties.
c. If there are no services available that will allow the child to remain safely at
home, the court approves out-of-home placement.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page IV- 1 7
d. In cases where the court decides that a child will be removed from home or
remain outside the home, the court may specify any further efforts to be taken to
identify and locate relatives or whether the child will be placed with a relative.
The court may give preference to placing the child with a relative who is fit and
able to meet the safety and developmental needs of the child.
e. In cases where the court decides that a child will be removed from home or
remain outside the home, the court orders terms of visitation and child support.
f. The court approves or modifies the terms of the case plan. Court orders
modifying the plan, if supported by evidence on the record, may address services,
foster placements, visitation between child and parents and among siblings, and
timetables for tasks by parents and agencies.
g. If necessary, the court issues restraining orders, orders to stay away from the child
or residence, domestic violence orders of protection, other orders meant to protect
the child in his or her own home, or other injunctive relief.
h. The court explains to the parents that if they fail to make improvements or lose
contact with the court or child welfare agency, the court may later decide to
terminate their parental rights.
i. If the child is in foster care, the judge explains to the parents the legal process:
(a) They have a maximum of 12 months from the date of the child's removal from
home to make improvements or possibly lose all rights to the child, (b) The court
has the authority to reduce the time and initiate the termination of parental rights
(TPR) proceedings when parents are not making efforts or showing progress. The
judge will ensure that parents understand the deadline and will provide them with
a written copy of this advice.
j. If the child will be placed in foster care with a goal of reunification, the agency
will pursue concurrent planning. Concurrent planning would involve placing the
child with an individual or couple who are willing to provide a permanent home
for the child if reunification is unsuccessfial and, if such a placement is
appropriate, a plan to secure and stabilize such a placement.
k. The court informs the parents of the availability of Non-adversarial Case
Resolution services. (See Chapter V.)
1. At the conclusion of the hearing, the court sets the time and date of the next
hearing.
m. The court may order parents to participate in services, to cooperate with the child
protection agency, and to take any other actions necessary for the health or safety
of the child.
The judge's review and considerafion of the agency's case plan and the opportunity for
input from attorneys for parents and children is the heart of the disposition hearing. The
recommendations and case plan must be individually tailored to focus on the needs of the
individual child and family. It should not simply consist of "boilerplate" clauses drawn from
forms with little relevance to the child and family. Courts and agencies should work together in
designing a State's disposition report and case plan forms and in providing good examples of
completed reports and case plans.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page IV- 1 8
A well-constructed and court-approved case plan guides all of the parties in working
toward the case goal. The discipline of careful judicial scrutiny can help assure that the plan is
well focused and designed to remedy the causes of the child's removal and that all parties are
working toward a common goal.
States may want to consider a service agreement that includes obligations for both agency
and parents. Courts commonly exercise power over parents, compelling them to take certain
actions and refrain from others. The court should be able to order parents to do such things as
participate in services, stay away from the child, visit the child, and cooperate with the
caseworker. Courts commonly hold parents in contempt for failing to obey such orders, using
fines and jail time as sanctions. These Guidelines take the position that such court authority
over parents is appropriate.
Paragraph f calls upon the court to approve or modify the case plan. The court, after
hearing from all affected parties in an open proceeding, should be empowered to modify a case
plan and intensively monitor implementation of the plan, placements, and services. The court
must also conduct frequent reviews. Because the case plan is the most critical tool in resolving
problems or moving toward permanent separation, court oversight is critical. These Guidelines
do not, however, propose to authorize the judge to take over the agency's function of developing
a plan for the child or of day-to-day decision-making. The judge should not modify the terms of
an agency case plan without good reason, based on the specific facts and circumstances of the
case. The judge may choose to order a specific placement for the child, thereby usurping
specific placement authority from the custodial agency. In these instances, children will be
ineligible for Federal foster care matching funds.
A different concern about judicial oversight of case planning is that it might interfere
with agency budgeting and organization of services. Frequently alteration by the court of
agencies' choices of services, frequency of visitation, placement recommendations, etc., can put
a strain on agency resources and staff and circumvent the usual budgetary and priority setting
process of the executive and legislative branches of government. State agencies can limit such
intervention, at least in part, by adopting legally binding regulations specifying which services
they will provide and setting eligibility criteria for the services. In addition. State agencies and
court systems can meet regularly to discuss critical service issues.
Tensions related to the scope of court powers to issue specific orders related to
placements and services continue. For example, some members of the Expert Workgroup
thought that the judge should not be empowered to specify where a child will be placed or what
services will be provided because such authority undermines agency discretion.
During the disposition hearing, the judge must explain the proceedings and listen to the
parties. If they speak another language, the hearing must be conducted through an interpreter
who may also be important when the parents and the worker are developing a plan. It must be
recognized, however, that introducing another person into the process may cause some
reluctance on the part of parents to discuss their situation. Even with an interpreter some
information is lost. Normally, the judge not only hears the verbal response; he or she also
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page IV- 1 9
observes the parent's reaction or body language. When there is an interpreter, the judge does not
have that extra insight into the parent's perception of what is being said.
27. Concurrent Reasonable Efforts: We recommend that State law authorize the agency to
make reasonable efforts to preserve a family concurrently with efforts to ensure that
an adoptive or other alternative permanent home will be available if needed by the
child.
Commentary
Concurrent planning means working to reunify a family while, at the same time, planning
for the possibility that reunification will not succeed. In those instances where the probability of
reunification is low, an agency might seek out foster parents who will be willing to adopt the
child should reunification efforts fail. The agency may begin a search for potential adoptive
parents while reunification efforts are still underway or might search for and involve a non-
custodial parent or extended family in the event that efforts to return the child to the custodial
parent fail. These practices are explicitly authorized by ASFA, which provides that "reasonable
efforts to place a child for adoption or with a legal guardian may be made concurrently with
reasonable efforts [to preserve the family]." [§101(a), 42 U.S.C. §671(a)(15)(F).]
GUIDELINES FOR REVIEW HEARINGS
28. Deadline for Review Hearings: We recommend that State law require that whenever
there is a plan for family reunification, a review hearing should take place 3 months
from the date of the disposition hearing and every 3 months thereafter as long as the
child remains under the jurisdiction of the court.
Commentary
A judicial "review hearing" takes place after disposition and provides an opportunity for
the court to comprehensively consider the progress of a case. Key purposes of a review hearing
are to evaluate progress and compliance with the case plan. The case plan can then be refined to
facilitate reunification of the child with parents when possible, eliminate obstacles to achieving a
permanent placement of the child, and encourage a rapid pace for achieving permanency for the
child. At a judicial review hearing, the court considers the progress of the parties toward
achieving the case goal since disposition or the most recent review hearing. The agency
generally submits a written progress report, including the latest version of the case plan prior to
the hearing.
Federal law requires periodic foster care review at least once every six months, by a court
or administrative body. The review is to:
"... determine the safety of the child, the continuing necessity for and appropriateness of
the placement, the extent of compliance with the case plan, and the extent of progress
which has been made toward alleviating or mitigating the causes necessitating placement
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page IV-20
in foster care, and to project a likely date by which the child may be returned to and
safely maintained in the home or placed for adoption or legal guardianship..."
42 U.S.C. §§671(a)(16), 675(5)(B), as amended by ASFA §102(2)(B)(ii).
These Guidelines recommend more frequent judicial review hearings. First, judicial
review ensures full and fair participation of the affected individuals that the court process
provides. Second, review provides an effective system of checks and balances.
Holding judicial review hearings at frequent intervals such as every three months may be
instrumental in achieving timely permanent placements for children in foster care. By holding
frequent reviews, the judge can identify and resolve disputes and can take steps to eliminate
delays in casework and services. The judge can make a more complete record of the agency's
efforts to help the family and the parents' response to those efforts. The Resource Guidelines
say that there should be a judicial review in every case at least every six months, and
recommends more frequent reviews as appropriate.
If a State changes its laws to require more frequent judicial review in foster care cases,
the legislature should consider both the capacity of the courts to conduct such reviews as well as
the agencies' capacity to participate in them, and provide them with the necessary resources to
perform this function. (See Guideline 5.) Some States have chosen not to have the courts
conduct reviews. The Resource Guidelines recommend, as the best alternative or complement to
judicial review, review by panels of judicially appointed citizen volunteers. The Resource
Guidelines also recommend (p. 67) that members of review panels be carefully recruited, trained,
and supervised and that each panel of citizens review no more than 1 00 children. State law
should ensure that this or other forms of non-judicial review are coordinated with the court
process.
29, Review Report: We recommend that State law require that the review report be filed
and sent to the parties at least 5 days before the hearing and should prescribe a
comprehensive list of issues to be addressed in the report. The format of the report
should list each issue, in similar language, as the issues to be addressed in the
judicial review hearings' orders and findings.
Commentary
As with the disposition hearing report, it is very important that the format and content of
the agency's pre-review report address the precise issues to be resolved by the court order and set
forth in the findings at the review hearing. Agencies and courts should work together to develop
standard formats and contents both for agency reports and judicial findings. Both the Resource
Guidelines and the ABA Sample Court Rules to Achieve Permanency for Foster Children
demonstrate how to match issues to be included in reports with those to be included in court
orders and findings.
The following is a list of topics that State law should require for the review report:
a. Recommendations for the current custody and placement of the child;
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page I V-2 1
b. If return home is recommended, a description of the progress that the parents have
made in remedying the causes of placement. There must also be an explanation
of why the child will be safe at home and of any proposed conditions to be
required of the agency, parents, and other parties and the reasons for those
conditions;
c. If applicable, recommended revisions in terms of visitation and child support;
d. If removal or continued out of home placement is recommended, a
recommendation concerning whether services should be continued to reunify the
family or whether some alternative permanent plan for the child should be
adopted;
e. If out-of-home placement with a goal of reunification is endorsed, a
recommendation concerning whether it is appropriate to place the child with a
foster family willing to provide a permanent home for the child in case
reunification is unsuccessful. If such a placement is appropriate, the agency must
indicate what steps are needed to secure and stabilize such a placement;
f Current recommendations, if appropriate, for restraining orders, orders to stay
away from the child or residence, domestic violence orders of protection, or other
injunctive relief;
g. A statement must show the extent of compliance with the case plan, including a
description of the continuing necessity for and appropriateness of the placement.
The statement must identify progress toward alleviating or mitigating the causes
necessitating placement in foster care, and a likely date by which the child may be
returned to the home or placed for adoption or legal guardianship. In addition, the
agency must show whether the case plan is designed to ensure that the child is in
the most family-like and most appropriate setting and in close proximity to the
parents' home, and whether the child's physical, emotional, and educational needs
are being met in the current placement;
h. A statement concerning what steps are needed to ensure that the child maintains
contacts with his or her own culture; and
i. Proposed revisions in the case plan.
30. Admission of Hearsay Reports at Review Hearing: We recommend that State law
provide that hearsay reports may be admitted into evidence at the review hearing
on the same terms and conditions as reports submitted for disposition hearings.
Commentary
See the Commentary accompanying Guideline 24.
31. Requirements for Review Hearings: We recommend that State law set forth a
comprehensive list of actions, decisions, and findings that are to occur at review
hearings.
Guidelines for Public Policy and Slate Legislation Governing Permanence for Children Page IV-22
Commentary
The following is a list of decisions, findings, and actions that State law should require for
the review hearing:
a. The court determines the current custody and placement of the child.
b. If a child is returned home without dismissing the case, the court specifies or
reconsiders any conditions that will be required of the agency, parents, and other
parties.
c. If applicable, the court specifies or reconsiders terms of visitation and child
support.
d. In cases where the court decides that a child will be removed from home or will
remain outside the home, the court determines whether reunification services will
continue to be provided to the family.
e. If the child will be placed in foster care with a goal of reunification, whether the
agency will place the child with a foster family willing to provide a permanent
home for the child in case reunification is unsuccessful. If such a placement is
appropriate, the agency must have a plan to secure and stabilize such a placement.
f The court may issue restraining orders, orders to stay away from the child or
residence, domestic violence orders of protection, or other injunctive relief, as
necessary.
g. The court enters findings concerning the extent of compliance with the case plan,
including the continuing necessity for and appropriateness of the placement. The
court findings must indicate progress toward alleviating or mitigating the causes
necessitating placement in foster care, and a likely date by which the child may be
returned to the home or placed for adoption or legal guardianship. The court must
enter findings about whether the case plan is designed to ensure that the child is in
the most family-like and most appropriate setting and in close proximity to the
parents' home; and whether the child's physical, emotional, and educational needs
are being met in the current placement.
h. The court approves or modifies the case plan.
i. If the child is in foster care, the court reminds parents of their maximum time to
make improvements or possibly lose all rights to the child. The court also
indicates that, if the parents fail to make good progress prior to the next court
review, they may be allowed less than the full time to make improvements. The
court questions parents to ensure that they understand the deadline and provides
them with a written copy of this warning.
j. At the conclusion of the hearing, the court sets the time and date of the next
hearing.
The Resource Guidelines and the ABA Sample Court Rules to Achieve Permanency for
Foster Children list issues to be addressed in review hearings which are consistent with Federal
law and the recommendations above. Note the consistency between this list of issues to be
addressed in the review report and the list of matters to be decided at the review hearing in
Guideline 3 1 . Federal law requires that each administrative review, whether conducted by a
court or by an administrative panel, is to determine the safety of the child and the extent of
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page lV-23
compliance with the case plan, including the continuing necessity for and appropriateness of the
placement. Each review must also identify progress toward alleviating or mitigating the causes
necessitating placement in foster care, and a likely date by which the child may be returned
safely to the home or placed for adoption or legal guardianship. The review is also to assure that
each child has a case plan designed to achieve placement in a safe setting that is the least
restrictive (most family-like) and most appropriate setting and in close proximity to the parents'
home as described above. [42 U.S.C. §§671(a)(16), 675(5)(A), 675(5)(B).]
32. Participation of Foster Parents, Relative Caregivers, and Pre-adoptive Parents: We
recommend that State law provide that foster parents, relative caregivers or pre-
adoptive parents be provided notice and an opportunity to be heard in any hearing.
Commentary
Federal law requires that foster parents, pre-adoptive parents, and relative caregivers be
given an opportunity to be heard in child welfare cases, as follows:
[T]he foster parents (if any) of a child and any pre-adoptive parent or relative providing
care for the child [must be] provided with notice of, and an opportunity to be heard in,
any review or hearing to be held with respect to the child, except that this subparagraph
shall not be construed to require that any foster parent, pre-adoptive parent, or relative
providing care for the child be made a party to such a review or hearing solely on the
basis of such notice and opportunity to be heard.
[ASFA §104(3), 42 U.S.C. §675(5)(G).]
Foster parents or relative caregivers are extremely important to the child, and often
possess valuable information and insights that the court should hear directly.
Federal law does not provide foster parents with party status to the proceedings with
rights such as calling and cross examining witnesses and initiating proceedings for termination of
parental rights. While no State makes all foster parents full parties to child abuse and neglect
cases. States have varied policies related to the foster parent's right to formally intervene.
The Expert Work Group did not reach consensus on whether and, if so, when foster
parents should be made parties to the proceedings. While many States allow foster parents to
become parties under specific circumstances, these laws vary in important respects. Among
other things. State laws might allow foster parents to become parties upon their request or give
courts discretion about making foster parents parties. State laws might authorize foster parents
to become parties after they have cared for the child for a specified length of time or after they
have formed close emotional bonds to the child. State laws might grant foster parents party
status only at certain stages of the proceedings (e.g., to seek termination of parental rights), or
allow foster parents to oppose a child's removal from their home or seek to adopt or become
guardians of their foster child.
The main argument in favor of foster parent standing is that foster parents often know the
child intimately and are deeply committed to the child's welfare. This is typically the case when
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page IV-24
foster parents seek to adopt. As the persons who may be the most concerned and knowledgeable,
giving them standing may increase the likelihood of a judicial decision in the best interest of the
child.
A common argument against foster parent standing is that when foster parents are
competing for long term care of the child, they may be unable to support reunification efforts.
Opponents argue that foster parents should not be encouraged to believe that they can interfere
with plans to reunify the family and eventually succeed in adopting the child.
GUIDELINES FOR PERMANENCY HEARINGS
33. Timing of Permanency Hearings: We recommend that State law require that a
permanency hearing be held:
a. No later than 12 months after the child was removed from the home and at
least once every 12 months thereafter;
b. Within 30 days after the court has determined that the State is not required
to provide reunification services for a family following a child's placement
into foster care;
c. At the request of a party; and
d. On the court's own motion.
Commentary
Permanency hearings are post dispositional hearings to decide what type of permanent
placement will be chosen for the child. Both the timing and the structure of this type of hearing
are important to achieving permanence for the child.
Federal law requires that permanency hearings occur no later than 12 months after the
child is considered to have entered foster care. [ASFA, §302(1), (2), amending 42 U.S.C.
§675(5)(C).] In addition, in those cases where a court decides that reunification services are not
required, the permanency hearing must be held within 30 days of the decision. [ASFA, § 101(a),
42 U.S.C. §671(a)(15)(E)(I).]
Note that this Guideline recommends a stricter deadline for permanency hearing than
required by Federal law. It recommends that the permanency hearing occur within 12 months
after a child actually is removed from the home. This is not the same as 12 months after the
child is "considered to have entered foster care," which is the deadline required by Federal law.
According to Federal law, a child is "considered to have entered foster care" on the earlier of
"the date of the first judicial finding that the child has been subjected to child abuse or neglecf
or "the date that is 60 days after the date on which the child is removed from the home." [ASFA,
§ 103(b), 42 U.S.C. §675(5)(F).] Thus, Federal law allows the permanency hearing to occur later
than 12 months after the date the child actually was removed from the home.
The majority of the Expert Work Group recommends that the permanency hearing be
required within 12 months after the child actually is removed from the home. First, the group
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page IV-25
agreed that 12 months after placement was a long enough time period in the life of the child and
a workable deadline in which to achieve family reunification. Second, it is difficult to administer
the more complex time limit permitted by ASFA.
A minority of the Expert Work Group took the position that State law should reflect the
Federal deadline. They noted that under Federal law the 12 months do not begin to run until the
court has had time to decide that the child has been abused and neglected but do begin no later
than 60 days after entry into foster care. They reasoned that some parents refuse to cooperate
with reunification plans until courts have made that decision. If the clock begins to run at that
point, this will give the family a full year to make improvements. This also allows for the fact
that services provided by agencies are often delayed.
Before the enactment of ASFA, a number of States had already passed legislation
requiring permanency hearings within a year of removal from the home. However, many other
States need to amend their legislation to substantially transform both the timing and character of
these hearings, in order to comply with the new Federal law.
34. Consolidated Hearing to Avoid Duplication: We recommend that State law provide
that the court may combine, in a single hearing, a determination that reunification
services are not required and a permanency hearing, including a decision that a
petition for termination of parental rights will be filed.
Commentary
After a court determines that reunification services are not required, ASFA requires a
permanency hearing within 30 days. [ASFA §101(a), 42 U.S.C. 671(a)(15)(E)(i).] One of the
decisions that a court may make at a permanency hearing is to order the filing of a petition for
the termination of parental rights. [ASFA §302, 42 U.S.C. §675(5)(C).]
In some cases, when the court determines that reunification services are not required, the
State will have already decided to seek termination of parental rights and the court will have
enough informafion to support that decision. Therefore, when a court first decides not to require
reunification services, the court should be permitted to conduct a permanency hearing in which it
might order the filing of a petition for termination of parental rights. Requiring that the
permanency hearing be delayed would needlessly delay permanency for the child.
35. Decisions at Permanency Hearing: We recommend that State law provide that at the
permanency hearing:
a. The following is the order of priority of permanency goals:
• Safe return home to a parent or relative at a specific date;
• Adoption, by a relative or non-relative, with a specified deadline for
filing a petition for termination of parental rights;
• Permanent guardianship to an individual or couple;
• Another legally permanent placement with a suitable and willing relative;
or;
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page IV-26
• Upon a showing of a compelling reason that priorities 1 through 4 above
are not in the best interests of the child, another permanent living
arrangement.
The court will not order a permanency goal if there is another alternative
that is higher priority, practical, and in the best interest of the child.
The court may extend temporary foster care with a continued goal of family
reunification no more than two times for up to 90 days each, but only if the
parent has made such progress that reunification is expected to occur within
90 days.
The court may approve continued placement of the child in a residential or
group setting for no more than 90 days at a time and only if the child cannot
function in a family setting.
Commentary
Federal law requires that the permanency hearing will determine the permanency plan for
the child, including, among other things:
. . . whether, and if applicable when, the child will be returned to the parent, placed for
adoption and the State will file a petition for termination of parental rights, or referred for
legal guardianship, or (in cases where the State agency has documented to the State court
a compelling reason for determining that it would not be in the best interests of the child
to return home, be referred for termination of parental rights, or be placed for adoption,
with a fit and willing relative, or with a legal guardian) placed in another planned
permanent living arrangement and, in the case of a child [placed outside the State],
whether the out-of-State placement continues to be appropriate and in the best interests of
the child, and, in the case of a child who has attained age 1 6, the services needed to assist
the child to make the transition from foster care to independent living. . .
ASFA, §302, as amended by 42 U.S.C. §675(5)(C).
The Expert Work Group recommends that State law clearly distinguish permanency
hearings from review hearings. While review hearings should reevaluate the current plan for the
child, permanency hearings should make permanent placement decisions. At a permanency
hearing, it should not be sufficient for the court to set a permanency goal for the child. Rather,
the court should either order an appropriate permanent arrangement (as in the case of return
home) or order the initiation of proceedings to bring about the arrangement (as in termination of
parental rights or legal guardianship). In addition, the court should be empowered to order the
agency to initiate or join in termination proceedings.
In the list of priorities in this Guideline, "another legally permanent placement with a
suitable and willing relative" is lower in priority than return home, adoption, and legal
guardianship. Note, however, that both adoption and legal guardianship may be with a relative.
Furthermore, in an individual case, placing the child with a relative may be important enough to
the child to justify a lower priority permanency option. (See Chapter II, Options for Legal
Pennanency, Guideline 4.) For example, while adoption is generally preferred over permanent
guardianship, sometimes relatives prefer not to adopt. Consider a case in which a particular
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page IV-27
relative is the best prospective caretaker, the relative is fully committed to raising the child, but
the relative has convincing reasons for preferring not to adopt the child. In this case, selecting
the relative as guardian is consistent with this Guideline.
36. Permanency Hearing Petition, Motion, or Report: We recommend that State law
require that a petition, motion, or report be filed and sent to the parties at least 5
days before the permanency hearing and should set forth a list of issues to be
addressed. The petition, motion, or report should address each issue, in similar
language, that must be addressed in permanency hearing orders and findings.
Commentary
The permanency hearing must be structured carefully to yield a permanent placement
decision for the child. This Guideline is designed to encourage the agency to engage in a
systematic thought process, carefully considering different options for permanency in the order
of their priority. As is the case with disposition and other reports to the court, the agency report
for the permanency planning hearing should address each issue in language similar to that of the
court's findings and orders. The following is a list of topics that State law should require for the
permanency hearing petition, motion, or report:
a. Recommendations for a permanent goal for the child, including the reason for the
choice of permanent placement and steps to be taken to ensure the safety and
stability of the permanent placement;
b. Where applicable, a statement of compelling reasons why every higher priority
permanent placement was not in the best interests of the child;
c. If the agency recommends that the child be returned home, a statement of reasons
why the child can safely return home, a suggested date for the child's return, and,
if applicable, a plan for safeguarding the child at home;
d. Where the recommended goal is neither returning the child home on a specific
date nor filing a petition for termination of parental rights, a statement of one or
more compelling reasons why termination of parental rights is not in the best
interests of the child;
e. If the agency recommends an extension of temporary foster care with a continued
goal of family reunification, an explanation of the parent's substanfial progress
toward reunification and why reunification is likely to occur within 90 days; and
f. If the child is permitted to remain in a group or institutional setting, a statement of
compelling reasons why the child cannot function in a family setting and what
steps should be taken to prepare the child to be placed with a family.
For other similar recommendations for permanency planning hearings, see the Resource
Guidelines and the ABA Sample Court Rules to Achieve Permanency for Foster Children.
Note that the requirements in this Guideline are in several respects stricter than those required by
Federal law. Under Federal law, at the permanency hearing a court may approve a permanent
placement arrangement other than return home, adoption and termination of parental rights, or
guardianship. The court may only approve an alternative arrangement if the agency has
documented compelling reasons why the specified arrangements or placement with a relative
would not be in the child's best interests. [ASFA, §302, as amended by 42 U.S.C. §675(5)(C).]
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page I V-28
This Guideline requires the agency to provide additional documentation of compelling
reasons, including reasons why every higher priority placement option was not recommended.
For example, if adoption is recommended, the agency must document why the child cannot
safely be returned home. Paragraphs b, d, and f require the agency to explain in its report why
higher priority permanent placement arrangements are not in the best interests of the child.
37. Requirements for Permanency Hearings: We recommend that State law set forth a
comprehensive list of actions, decisions, and findings that are to occur at
permanency hearings. The court's order and findings should set forth and explain
a specific permanency plan. The findings should set forth compelling reasons why
each higher priority permanency option for the child (as listed in Guideline 35) was
not selected.
Commentary
The main task of a permanency hearing is to determine the permanent goal for the child.
A secondary, but also important, task is to specify what steps are to be taken to achieve the
permanent goal. If a low priority goal is selected, the court should explain the reasons for its
decision. If the court sets a permanency goal of adoption or guardianship, a petition for
termination of parental rights or for guardianship must be filed and heard. State statutory grounds
must still be met in order to implement the permanency plan.
The following is a list of decisions, findings, and actions that State law should require for
the permanency hearing:
a. The court will determine the child's permanency plan and specify the steps to be
taken to ensure the safety and stability of the permanent placement.
b. Where applicable, the court will state compelling reasons why higher priority
options were not practical.
c. If the court requires that the child be returned home, the court will specify a date
for the child's return, will enter findings stating why the child can safely return
home, and, if applicable, will approve or modify the agency's plan for
safeguarding the child at home.
d. If the child is to be placed for adoption, the court will order the filing of a petition
for the termination of parental rights within 30 days.
e. If the child is to be placed in legal guardianship, the court shall direct the filing of
a guardianship petition.
f. If the child is to be kept in temporary foster care with a continued goal of family
reunification, the court will allow only up to two extensions of temporary care up
to 90 days each. The court will enter findings describing the parent's substantial
progress toward reunification and explaining why reunification can occur within
90 days.
g. If the child is permitted to remain in a group or institutional setting, the court will
enter findings stating compelling reasons why the child cannot function in a
family setting and will evaluate the agency's plan to prepare the child to be placed
with a family.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page IV-29
Where the court decides that the child is to be placed for adoption, paragraph d requires
the court to order the filing of a petition for the termination of parental rights within 30 days.
Filing the termination petition within this time fulfills the ASFA requirement of either filing or
joining a petition for termination within 15 months after the child is considered to have entered
foster care. If a termination petition is not filed within this time, the agency must document to
the court compelling reasons why termination of parental rights is not in the best interest of the
child. [ASFA § 103(a)(3), 42 U.S.C. §675(5)(E).] Note that the agency may be excused from
filing a petition to terminate parental rights within the 15-month deadline if the State fails to
provide services to preserve the family in accordance with the agency's case plan and the agency
considers the services necessary for the child's safe return home. In addition, the agency may be
excused from seeking termination if the child is being cared for by a relative (if the State elects
this exception).
GUIDELINES FOR POST-TERMINATION COURT REVIEW
38. Timing of Post-Termination Review Hearings: We recommend that State law
require post termination review hearings to be held every 3 months as long as the
child remains under the jurisdiction of the court.
Commentary
In many parts of the United States, much needless delay occurs in the placement of
children who have legally been freed for adoption. Frequent judicial review, where conducted
by capable and specially trained judicial officers, can help secure the placement of children into
new permanent homes and/or expedite the finalization of permanency arrangements with foster
parents or relatives.
39. Requirements for Post Termination Review Hearings: We recommend that at a post
termination review hearing, State law require that the court address current
progress in placing the child in an adoptive home or other permanent placement. It
should also require that the court identify barriers to such placement, enter
appropriate orders to facilitate the timely permanent placement for the child, and
determine whether the State has made reasonable efforts to arrange and finalize the
child's permanent placement.
Commentary
Hearings following the termination of parental rights should be structured to ensure a
thorough and intelligent inquiry into the steps being taken to achieve and secure the child's
adoption. The ABA Sample Court Rules to Achieve Permanency for Foster Children include
proposed rules for post termination review hearings. (See Rules 87-90 and accompanying
commentary.) These Guidelines recommend requiring the court, at the conclusion of a
termination of parental rights trial, to schedule the post-termination review.
Guidelines for Public Policy and Slate Legislation Governing Permanence for Children Page IV-30
Once the permanency plan is changed from reunification. Federal law requires reasonable
efforts to finalize the permanent placement of a child as a condition of Federal financial
participation. "If continuation of reasonable efforts ... is determined to be inconsistent with the
permanency plan for the child, reasonable efforts shall be made to place the child in a timely
manner in accordance with the permanency plan and to complete whatever steps are necessary to
finalize the permanent placement of the child." [ASFA, §101(a), 42 U.S.C. §671(a)(15)(C).]
(See Chapter III, Reasonable Efforts to Preserve Families and Achieve Permanency for
Children.)
APPEALS
40. Guidelines to Expedite Appeals: We recommend that State law establish specific
guidelines to expedite appeals in child welfare cases. These guidelines should
include setting a short deadline for notice of appeal; setting short deadlines for
preparation of transcripts and records for appeal; setting a special tight brieflng
schedule; and setting time limits or guidelines for deliberations and issuance of
decisions.
Commentary
While appeals necessarily require great care and deliberation, they can lengthen
significantly the time a child must remain in foster care. It inevitably takes time to prepare and
review the record, to prepare and submit briefs, to hear arguments, to perform legal research, to
deliberate, and to prepare a written decision. Nevertheless, there are a number of specific ways
in which appellate delay can be significantly reduced without seriously compromising the quality
of the appeal. Among these are measuring and tracking the progress of appeals; shortening
deadlines for initiating appeals; providing additional resources for the speedy preparation of the
transcript and record; shortening deadlines for completion of the transcript and record;
streamlining and shortening the briefing schedule; setting oral arguments at an earlier time; and
setting and adhering to a tight schedule for deliberation and for preparation and completion of
the court's opinion.
The ABA Sample Court Rules to Achieve Permanency for Foster Children include
proposed rules to shorten appeals of child welfare cases. A number of State court improvement
projects are addressing this issue. State legislatures should fund technical assistance and training
for appellate judges concerning appeals in child abuse and neglect cases. Such technical
assistance and training should include expeditious docketing and tracking of appeals and the
developmental needs of abused and neglected children.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page I V-3 1
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Illinois Supreme Court Special Commission on the Administration of Justice, Part II: Juvenile
Justice. Springfield, IL (at 4, 9), 1993.
Katz, L., and Spoonemore, N. Courtwise: Making Optimal Use of the Legal Process to Ensure
Early Permanence for Children. Mountlake Terrace, WA: Lutheran Social Service of
Washington and Idaho, 1994. Distributed by Spaulding for Children, National Resource Center
for Special Needs Adoption, Southfield, MI.
McCarthy, R.J. "The Indian Child Welfare Act: In the Best Interests of the Child and Tribe."
Clearinghouse Review: 864-873 (December 1993).
Nadel, M.V. Foster Care: State Efforts to Improve the Permanency Planning Process Show
Some Promise. Gaithersburg, MD: General Accounting Office, May 1997.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page I V-33
National Center for Juvenile Justice. Policy Alternatives and Current Court Practice in the
Special Problem Areas of Jurisdiction over the Family. Pittsburgh, PA: National Center for
Juvenile Justice, 1993, 21-25.
National Council of Juvenile and Family Court Judges. "Judicial Authority and Responsibility:
1 8 Recommendations on Issues in Delinquency and Abuse and Neglect Dispositions." A Report
by the Key Issues Curriculum Enhancement Project Faculty Consortium, National College of
Juvenile and Family Law, National Council of Juvenile and Family Court Judges, Reno, NV,
January 1989.
National Council of Juvenile and Family Court Judges. Resource Guidelines: Improving Court
Practice in Child Abuse and Neglect Cases. Reno, NV: National Council of Juvenile and Family
Court Judges, 1995.
Pinkham, J. " Speaking to Tribal Judges on Improving Children's Court Practice in Child Abuse
and Neglect Cases in our Country: A Proposal for A Uniform Children's Code." University of
Michigan Journal of Law Reform 31 (1): (Fall 1997).
Ross, C. " The Failure of Fragmentation: The Promise of a System of Unified Family Courts."
Family Law Quarterly 32 (1): (Spring 1998).
Rubin, H.T., and Gable, R.J. Dependency Proceedings in California Juvenile Courts. San
Francisco, CA: National Center for State Courts, 1990.
Senate Office of Research. Senate Task Force on Family Relations Court, Final Report.
Sacramento. CA: Senate Office of Research, 1990, 32-36.
Stein, T. Child Welfare and the Law. Distributed by Child Welfare League of America,
Washington, DC, 1998.
U.S. Department of Health and Human Services. Adoption 2002: A Response to the Presidential
Executive Memorandum on Adoption. Issued December 14, 1996. Washington, DC: U.S.
Department of Health and Human Services, 1997.
Welty, K. A Framework for Foster Care Reform: Policy and Practice to Shorten Children 's
Stays. St. Paul, MN: North American Council for Adoptable Children, April 1997.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page IV-34
CHAPTER V: NON-ADVERSARIAL CASE RESOLUTION
INTRODUCTION
Professionals who work with children and parents have become increasingly dissatisfied
with the customary reliance on the traditional adversarial system in resolving family-related
disputes, including cases involving children's protection, placement, and permanent care. The
power struggle in contested child welfare-related cases and hearings may foster hostility among
the parties and dissipate money, energy and attention that could otherwise be used to solve
problems cooperatively. Parties may become polarized, open communication may be
discouraged, and there may be little investment in information sharing and joint problem solving.
Children may suffer when adversarial tensions escalate and ameliorative services are delayed.
The adversarial system is, however, essential and well-suited to resolving conflicts when
differences regarding the true facts of a child abuse or neglect case, or the differing views of the
proper response to a family's child protection-related problems, are irreconcilable. Nonetheless,
most child abuse and neglect cases are resolved through informal settlement negotiations.
Unfortunately, these settlements are often quickly made in courthouse hallways where the
interests of all parties may not be carefully or ftally considered. Hastily made agreements or
stipulations made immediately prior to a hearing can do a disservice to both children and their
families.
Non-Adversarial Case Resolution (NACR) has become an accepted alternative to the
traditional adversarial processes of the courts. It has also been widely adopted to resolve
conflicts within government agencies and elsewhere. Surveys of court improvement projects
indicate that one of the most popular reforms identified by the States is the use of alternative
forms of dispute resolution. (See Summaries of Twenty-Five State Court Improvement
Assessment Reports, National Council of Juvenile and Family Court Judges, March 1998.)
The Guidelines do not include certain court-based approaches to avoid lengthy and
contested case proceedings, including pre-trial case settlement and case status conferences. Such
procedures can be established through court rules, and they do not require authorizing legislation
or special funding for their establishment as a regular part of the judicial process in child abuse
and neglect-related cases. Courts should be encouraging resolution of contested matters through
pre-trial hearings that narrow the issues in contention. Courts may also find the use of special
masters or magistrates for this purpose helpful in speeding case resolutions.
These Guidelines focus on two forms of NACR that could be authorized and supported
by legislative action: Mediation and Family Group Conferencing. A related practice,
relinquishment counseling, does not require legislative authorization but will be discussed briefly
because it is often a component of both Mediation and Family Group Conferencing.
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Mediation in the child welfare context is well established in many jurisdictions. It is
commonly defined as "an intervention into a dispute or negotiation by an acceptable, impartial
and neutral third party who has no authoritative decision-making power but who assists the
disputing parties in voluntarily reaching their own mutually acceptable settlement of disputed
issues in a non-adversarial setting." Mediation is widely used today in domestic relations custody
disputes between parents, and is increasingly found in many juvenile delinquency, juvenile status
offender, and child welfare proceedings. Mediation in the child welfare context has existed in
Los Angeles and Orange County, California, and Connecticut since the niid-1980's. As of
September 1998, Mediation programs are operating in approximately fifteen California counties,
as well as in Connecticut, Utah, the District of Columbia, and in certain jurisdictions within
Florida, Texas, Kentucky, Hawaii, and Ohio. In addition, Arizona, California, Colorado,
Delaware, and Florida have State legislation authorizing the use of Mediation in child welfare-
related cases.
The National Council of Juvenile and Family Court Judges' Resource Guidelines
suggests that Mediation in child welfare legal cases:
• Involves discussions facilitated by one or more court-appointed, neutral, highly
skilled and trained third party mediators, involving all relevant case participants and
attorneys at some point during the Mediation;
• Always focuses on preserving the safety and best interests of the children (and the
safety of all family members), while simultaneously attempting to validate the
concerns, points of view, feelings, and resources of all participants, especially family
members;
• May occur at any stage in the history of the case. Typically the earlier it occurs once
the most significant case information is available, the better;
• Can be used to resolve a broad range of disposition and postdisposition issues as well
as certain jurisdictional issues;
• Serves to orient and educate family members, clarify issues, facilitate exchange of the
most current case information, and creatively intervene to resolve roadblocks to case
resolution;
• Should be confidential with exceptions limited to new reports of suspected child
abuse and neglect, and threats to harm self or others;
• Usually results in agreements which should become part of the court record;
• Seeks to leave family members with an experience of having been significant,
respected, and understood participants in the court process, with an investment in
accepting and complying with the terms of the resolution and/or decisions of the
court;
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• Serves to reduce the degree of animosity held by family members toward "the
system" and focuses the family's energy instead on child protection and parenting
related issues.
Resource Guidelines, pp. 133-138.
Family and juvenile courts recognize that the adversarial process in child abuse and
neglect cases can sometimes break down communications and create hostility, divisiveness, and
rigid position-taking between participants, most notably between the parents and the child
protective agency and/or the child's attorney. Mediation, on the other hand, brings all significant
case participants together in a nonadversarial and problem-solving setting. (Edwards, L.P., &
Baron, S., 1995, "Alternatives to Contested Litigation in Child Abuse and Neglect Cases."
Family and Conciliation Courts Review, 33, 275-285.)
One of the most extensive evaluations of child welfare-related Mediation, completed in
1995, was an examination of programs in five California counties. The evaluation demonstrated
the following characteristics of Mediation.
• Mediation can produce settlements at all stages of cases.
• All types of cases can be settled in Mediation, and there was no evidence to support
blanket screening-out of certain types of cases.
• Widespread support existed for mediating both jurisdictional and dispositional case
issues, although time constraints posed problems in doing both.
• Parents reported that Mediation gave them a place to be "heard" and to better
understand what was required of them.
• Agreements produced in Mediation were similar to outcomes promulgated by judges.
The former were more likely, however, to include detailed visitation plans for
children in out-of-home placement, were more likely to address communication
problems between family members or between the family and the child welfare
agency, and were more likely to result m parents specifically acknowledging the need
for services.
• Mediated contested cases were less likely than non-mediated contested cases to result
in later contested hearings.
• Mediated settlements enjoy greater compliance by parents — at least in the short-run.
• A variety of Mediation models proved effective.
(Thoennes, N., & Pearson, J., 1995, "Mediation in Five California Dependency Courts: A
Cross-site Comparison," Report to the California State Legislature, Denver, Colorado Center for
Policy Research. Thoennes N., 1997, "An Evaluation of Child Protection Mediation in Five
California Courts," Family and Conciliation Courts Review, 35, 184-195.)
Family Group Conference is a fairly new form of NACR that focuses on engaging the
extended family in plarming for a child and does not necessarily involve the mediating of
disputes. It is a promising NACR model that has been recently imported to the U.S. from New
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Zealand. Family Group Conference, whether it takes the form of Family Group Decision-Making
or a Family Unity Meeting, is characterized as a family-focused, strengths-oriented and
community based process where parents, extended family members, and others come together to
collectively make key decisions for children involved in the child welfare system. (Lisa Merkel-
Holguin, Putting Families Back into the Child Protection Partnership: Family Group Decision-
Making, Protecting Children, American Humane Association, Summer 1996.) Family Group
Conference is often administered by the child welfare agency as authorized by Oregon statute,
but could also be a form of court-approved NACR as described by Lowry. (See Lowry, Family
Group Conferences as a Form of Court-Approved Alternative Dispute Resolution in Child Abuse
and Neglect Cases, 31 U Mich. Journal of Law Reform 57, Fall 1997.)
The following principles and values characterize Family Group Conferences.
• Children are best raised in families
• The primary responsibility for the care of children rests with their families, which
should be respected, supported and protected.
• Family groups can make safe decisions for their own children. Families have
strengths and can change.
• Family groups are experts on themselves. Families have wisdom and solutions that
are workable for them.
• The essence of family empowerment is the belief in self-determination: Those we
help have a right and need to be free in making their own decisions and choices.
(Lowry at 66; See also, Elizabeth Cole, Key Policy Decisions in Implementing Family
Group Conferences: Observations Drawn from the New Zealand Model, in Hardin,
Family Group Conferences in Child Abuse and Neglect Cases: Learning from the
Experience in New Zealand, ABA Center on Children and the Law, 1996.)
The Family Group Conference process comprises four main parts. The first is the
Referral, in which a coordinator or gatekeeper decides whether to hold a conference. The second
is the preparation and plarming. The third is the Conference itself, which is generally divided
into four stages of welcome, information sharing, family meeting, and decision. The fourth is
writing, distribution, and implementation of the plan. (Lowry 66-76; Merkel-Holguin, p. 5-7.)
There are two primary differences between the Family Group Decision-Making (FGDM)
and Family Unity models (FUM). FGDM discourages the practice of excluding any family
members from the meeting, while the FUM permits parents to veto the participation of any
family member, a practice that provides parents with more control over the process and with
whom information will be shared. The second major difference is that the FUM model allows
professionals and support persons to be present during the family discussion, while a key tenet of
FGDM is that families, once briefed by the professionals,, must have a private family meeting
without the presence of any nonfamily persons.
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Oregon statute, ORS 417.365 to 417.375, authorizes family group conferences which are
generically referred to as "Family Decision-Making Meetings." Kansas legislation, Kan. Stat.
Ann. §38-1559 (Supp. 1996), authorizes such meetings as "Family Conferences." Family Group
Conferences are also being held in Santa Clara County, California and Grand Rapids, Michigan,
and other jurisdictions.
Voluntary relinquishment counseling is an underutilized child welfare NACR that should
receive special attention and may be employed as part of Mediation or Family Group
Conferencing or may occur separate from these mechanisms. Many professionals believe that it
would be helpfiil for parents and children alike if parental counseling concerning the voluntary
relinquishment of parental rights was readily available. Voluntary relinquishment can be more
humane than contested termination proceedings by avoiding some trauma to parent and child. It
can also avoid delay. In many cases, voluntary relinquishment of parental rights is preferable to
contested termination because it reduces the financial, emotional and time costs.
The use of NACR in the voluntary relinquishment process may also add civil liberty
protections to the birth parents when compared with more common methods of working with
birth parents on parental rights termination issues. Parents may, by participating in NACR, be
more likely to feel that those within the "system" are consciously protecting their rights, rather
than simply coercing them to "give up" their rights to their child. Also, where voluntary
relinquishments are not made within the court, making them within an NACR process could
provide protections to parents that are similar to those that should be provided to parents within
more formal termination of parental rights proceedings.
As recommended elsewhere in these Guidelines, parents should be aware of the
possibility of voluntary relinquishment at all stages of the court process. (See Chapter VI,
Termination of Parental Rights.) Voluntary relinquishment will be more attractive if options for
permanency, such as adoption with contact, are available under State law as recommended by
Chapter II, Options for Legal Permanency. Some parents will be more willing to relinquish
parental rights if they can ensure that their child will be adopted by someone of whom they
approve. Subject to the court finding that it is in the best interests of a child. State law should
permit parents involved in child protection proceedings to voluntarily relinquish their child for
adoption by specified persons to the same extent that so-called direct-consent adoptions are
permitted for other birth parents. Relinquishment under State law is generally of two types. In
one type, often called surrender, the agency determines who the adoptive parents will be —
subject to court approval. The other type involves direct or specific consent, in which the parents
are allowed to relinquish the child to a designated individual — also with court approval.
An amicable relationship between birth parent and new parent is also more likely under
these circumstances. Further, if more contested terminations of parental rights could be
converted into voluntary relinquishments. States would save considerable time and expense.
Some voluntary relinquishment programs have involved elements of Mediation, including the
possibility of formal agreements concerning future contact between the birth parent and child. In
such processes, parents' legal rights should be carefully protected. Parents should be legally
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represented, even though their lawyer might not participate in each stage of the relinquishment
counseling or Mediation.
Both Mediation and Family Group Conferences are alternatives to traditional
adversarial/litigative case approaches and help divert children and families from the child welfare
and court system while engaging parents in a non-threatening situation. NACR may enable
parents who have been inappropriately denying or minimizing the impact of the children's abuse
or neglect to safely acknowledge responsibility for the mistreatment and to willingly accept help.
Parents can, within the NACR process, be given choices of methods to solve the problems they
and their children face. The informal and participatory setting of NACR can facilitate this
problem-solving approach. Everyone benefits if disputes can be resolved earlier in the process
when a child has been identified as abused or neglected.
The advantages to using NACR in child welfare cases include:
• Sharing of responsibility for child protection beyond the child welfare agency and the
courts — to include the child's immediate family, the child's extended family, and the
child's community;
• Empowering parents in the decision-making process related to their children;
• Helping assure that, in addition to parents, others with a strong interest in abused and
neglected children are heard within the process of intervention;
• Facilitating parental compliance with agency case plans;
• Avoiding conflicts and delay, especially those harmful to children, which are
associated with the adversarial process;
• Reducing crowded judicial case dockets; and
• Circumventing the need for expensive, lengthy contested trials and case review
hearings.
Several unique factors should be considered whenever NACR is considered for a child
welfare-related matter. First, those involved with the process must remember that the safety of
children must never be compromised or endangered through the use of any nonadversarial case
approaches. Second, parents who participate in the NACR process must be competently
represented in order to compensate for the potential power imbalance that can exist when
government is intervening in a family's life. Third, NACR — if done properly within child
welfare proceedings — will not be inexpensive.
As discussed below, programs must have adequate funding for properly trained mediators or
family-group facilitators who can resolve cases in a timely manner.
Non-adversarial case resolution approaches could be used throughout the child protection
process, both before and after court intervention becomes necessary. Different forms of NACR
can be useful at any stage of State intervention to protect children, from the initial identification
of abuse and neglect through the final permanent placement of a child. The earlier in the process
that NACR is implemented, the greater its chance for success. The adversarial process can create
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page V-6
great harm and extensive delays in resolving cases. The NACR process has the potential for
being concluded much more quickly. The NACR process, however, should not "stop the clock"
on the mandatory permanency time lines in child welfare court cases as imposed by Federal and
State law.
It is still early in the development of these alternatives, so no single approach to NACR in
the child welfare context should be statutorily imposed on an entire State. There are a variety of
such methods, each of which is worthy of further testing and evaluating. Unfortunately, in most
jurisdictions, none of these formal, structured opportunities for non-adversarial case resolution —
at both the child welfare agency and court levels — have been available. Thus, these Guidelines
encourage the development of non-adversarial case resolution approaches through the enactment
of authorizing legislation and support to the implementation of ongoing evaluation of results.
GUIDELINES AND COMMENTARY
1. Authorize NACR. We recommend that State law authorize various forms of non-
adversarial case resolution (NACR) to be used by child welfare agencies and the
courts.
Commentary
Laws should authorize various forms of NACR in child welfare cases including formal
Mediation, Family Group Conferencing, and relinquishment counseling. Judges and child
welfare agency directors should lead in encouraging and implementing such programs.
However, legislatures should not look at NACR as a way of avoiding making fundamental
improvements in both the child welfare agency and juvenile court system. NACR is a tool for
these systems but not a substitute for the fundamental reforms necessary for a fair and effective
court process and a child welfare agency with adequate resources.
NACR is generally more expeditious and efficient than traditional litigation and can often
resolve disputes without the hostile overtones characteristic of the court's adversarial process.
When children are endangered, their extended families may provide invaluable resources to help
fashion safe and permanent case resolutions. NACR in the child welfare context should be
structured to involve the parents and the child's extended family in responsible planning and
decision-making for the child. Use of various forms of NACR can provide clients with the
opportunity to vent, disagree and be heard, and to understand the points of view of others.
Evaluation of NACR programs in various States and locales shows:
• Production of better and longer lasting resolutions of child protection cases;
• Parent participation in the child protection problem-solving process;
• Professionals hear first-hand from parents and family members;
• Resolution of personal conflicts within the family and between the family and social
worker;
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• Identification and mobilization of family strengths; and
• Diffusing of animosities the family may have towards the system.
Additionally, family members often feel more comfortable raising the cultural, ethnic, or
religious needs of the child in the more informal NACR process.
2. Child's Needs Paramount. Child safety, permanency and well-being are the
principal goals of NACR and we recommend that State statutes and child welfare
agency policies and court rules ensure that NACR programs are structured
accordingly. NACR should not delay the resolution of cases nor create additional
trauma for the child and family. NACR should empower parents and promote
shared responsibility with the extended family and community to serve the best
interests of the child effectively and more promptly.
Commentary
The principal goal of NACR in the child welfare context is to assure the safety and
protection of children through resolution of disputes without having to rely on the traditional
adversarial court process. NACR should also focus on child well-being and permanency, family
empowerment, and community involvement in the process.
The greatest fear among critics of NACR in these cases is that child safety will be
compromised or sacrificed during the process. Proponents and critics of such processes agree
that child safety must never be sacrificed in the interests of reaching agreement or as part of any
"plea bargains." Concerns about children being endangered through the use of NACR can be
alleviated in several ways. First, NACR must assure that the child's "voice" is clearly heard
within the process, either through the child him/herself, by the child's legal representative, or
both. Second, NACR must permit the child's representative, the convenor/facilitator/mediator,
or others to veto any agreements reached through the process. Third, NACR should provide for
an independent review of any mediated agreements, stipulations, or settlements by judges and
child welfare agency supervisors. Fourth, NACR should structure more frequent involvement
by protective family members during the Mediation processes and within mediated agreements.
For NACR to work in a timely fashion, it should be initiated promptly and — ideally — a
decision should be reached within 30 days of its initiation. In emergency situations, it should be
completed even sooner. The NACR process should clarify how any agreement will be enforced
and what will happen if and when the agreement fails. In addition to being ever-conscious about
the child safety issues in mediating case resolutions, those involved within the NACR process
must constantly think about how the process, and its outcomes, will promote permanency for the
child.
3. Available for All Stages and Issues. We recommend that NACR techniques be
available at all stages of the child welfare agency and court process. It should also
include all family members (with limited exceptions, and with specialized protocols
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page V-8
being developed for dealing with sexual abuse and domestic violence issues), and be
permitted to address a broad range of issues within both the child welfare agency
and court process.
Commentary
NACR techniques can be fairly and effectively used at all stages of the child welfare
intervention process. NACR should be available prior to the filing of a court petition and
throughout the legal process, up to and including relinquishment or termination of parental
rights, adoption, and guardianship. In the court process, settlements are typically presented to the
court and, if approved, entered as fully enforceable court orders. Proponents of NACR in child
welfare cases have seen it used successfully to help expedite adoptions and guardianships for
severely abused or neglected children.
NACR can be used in various ways, each of which should be separately considered by
State legislatures and other policy makers. Both Mediation and Family Group Conferences can
be used:
• To resolve conflicts between child welfare agencies and parents concerning proposed
case plans and final case resolutions, to help divert cases fi-om the court system, and
to work out disputes over a child's supervision, placement, visitation, family
reunification, and permanent plans for the child (e.g., mediated relinquishment of
parental rights or guardianship, as well as facilitation of cooperative adoption
agreements where appropriate and permitted by law); and
• To increase intra- familial involvement among parents, relatives, and other extended
(kinship) family members in fashioning case resolutions and improving cooperation
and coordination with government child protection and child welfare authorities.
Mediation can be used:
• To resolve conflicts among substitute care providers, foster care caseworkers and
case reviewers, and children's court-appointed advocates about the needs of children
during periods of substitute care; and
• To resolve matters more promptly as part of the court process among the various
attorneys and other advocates, caseworkers, therapists, other involved professionals,
and the parents and other family members in child protection judicial proceedings.
Mandatory case Mediation facilitated by a trained independent mediator can help
focus attention on collaborative problem solving on behalf of the child.
Legislation or policies should not impose blanket exclusions of any parties or types of
cases fi-om NACR. Some State laws currently exclude a few types of cases from eligibility for
Mediation. The Expert Work Group, however, identified various types of cases, even cases
involving sexual abuse and domestic violence, which benefited fi-om NACR. For example, in
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sexual abuse cases where a mother might feel threatened by litigation against her for "failure to
protect" her child from the abuse, involving her in NACR could help achieve quicker agreement
to a plan keeping the perpetrator away from the child, thus protecting the child's safety. In child
protection cases where there has also been domestic violence in the home, the battered mother
may be empowered through the NACR process to take better control of her life and the
protection of her child. A very inclusive process is recommended, which does not bar any type of
case or person, even though on a case-by-case basis some persons may be excluded (where
NACR is not appropriate for all cases or for all family members).
On occasion, and where appropriate, children will be involved in the process, especially if
they are older and reasonably mature. Exposure of children to NACR can help them recognize
that their immediate families and relatives are truly interested in their welfare and that their own
concerns are taken seriously.
The NACR process must not be delayed by strategic litigation concerns. The
permanency timelines of Federal and State law must be met and delays in the formal process
avoided. For example, cases involving the abuse or neglect of a child, in which criminal charges
are pending against a parent/party, should not have Mediation delayed because the related
criminal matter has not yet been resolved.
Any interested person should be authorized to request NACR in any child welfare case.
To avoid trivial issues taking up valuable time within NACR, court or agency gatekeepers or
facilitators of these processes should initially explain the ground rules to participants and indicate
how matters inappropriate for resolution within NACR can be separately addressed. Because a
family group conference is more logistically complex and time consuming than Mediation, the
gatekeepers may be more cautious in convening the FGC. Some important questions must be
addressed in any NACR program implementation. For example, do the parents have the right to
consent, or opt out of, the convening of a Mediation or Family Group Conference process? Who
should be considered "family members" or other "interested persons" and therefore invited to
participate? Should the coordinator or facilitator of the process have authority to exclude certain
family members, such as those believed to be intimidating the child or other family members?
Should there be mandatory timetables for convening/completing the NACR process?
4. Facilitate and Evaluate Pilot Projects. We recommend that State law and process
facilitate the development of child welfare-related NACR models in local
jurisdictions — including pilot projects in case Mediation, Family Group
Conferencing, and relinquishment counseling. Well-trained and competent persons
should staff NACR programs. State law should also require that programs be
evaluated for outcome, including child safety and well-being, permanency, and
family empowerment.
Commentary
NACR cannot be implemented without well-trained and qualified staff who have had
adequate preparation. Most programs even require preparation. Although these costs may be
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page V- 1
significant initially, they should soon be offset by the cost savings achieved through NACR. For
example, there may be a reduction in the number of children in expensive out-of-home care and a
decline in the number of adversarial court hearings that take up the considerable, and expensive,
time of professionals.
To assure that all parties consider it an objective process, mediators should be
independent of the child welfare agency or the judge, even though the child welfare and court
system must coordinate in the execution of these processes to ensure NACR is effectively
implemented. Community child protection systems, including judges, child welfare agency
representatives, attorneys, and child advocates, should meet regularly to discuss the creation and
maintenance of NACR programs. Legal representatives for the child should be available to
participate in all phases of NACR, and both children's and parents' legal or other representatives
should be involved in the planning of NACR programs.
Hiring competent program coordinators, facilitators, or Mediation supervisors is a critical
factor in NACR program success. Persons with this responsibility — especially those working
with cases serious enough to have warranted court intervention — should already be trained
mediators, be experienced child welfare professionals, or have other special skills appropriate for
directing such initiatives.
Certification standards for NACR staff should be established. NACR personnel should
be trained in dispute resolution generally and on issues relevant to the child welfare NACR
process. The training should include information on child abuse and neglect, child development,
domestic violence and its impact on children, substance abuse, family functioning and family
systems, power imbalance concerns in mediating child welfare cases, working with diverse
communities, and access to community resources. Because these are highly transferable skills,
many in the commimity may want to be trained as mediators. All trainees should be monitored
by more experienced NACR experts. Trainees should observe others in action.
Because of the relative newness of NACR and because it is in the process of
development, careful and scientifically sound evaluations are needed. Evaluators should describe
how particular NACR programs are implemented, their impact on outcomes for children, and
their effect on agency and judicial costs.
5. Technical Assistance Available. We recommend that technical assistance be
available to State and local child welfare agencies and courts to support the
development and maintenance of effective NACR.
Commentary
Starting an NACR program is a complex process. State legislatures should encourage
State and county child welfare agencies, as well as State supreme courts and administrative
offices of the courts, to develop and access technical expertise that can help local agencies and
courts implement and maintain NACR techniques. Resources will help courts learn about
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page V- 1 1
NACR alternatives in child welfare cases and which NACR approaches appear to be most
effective in which situations.
6, Confidentiality. We recommend that State law ensure that statements made within
the NACR process are confidential and will not be admissible in any court
proceedings. An exception should be Statements giving rise to new allegations of
child abuse or neglect that are subject to mandatory child abuse and neglect
reporting laws, or any threats of harm to self or others.
Commentary
Frank and open discussion of all relevant issues is essential to the success of NACR. The
confidentiality provisions are intended to promote the free and unreserved discussion and sharing
of information. Statements made in the NACR process should be treated as if they were
statements made in the course of settlement discussions. Even when there is only partial
agreement on the issues, the substance of the NACR discussion should not be used in the court
process. When Mediation is unsuccessful, neither the mediators or other participants in the
process should testify against any party in court nor should any product of the Mediation be used
in court, including whether in the mediator's opinion one party cooperated or failed to cooperate.
{Resource Guidelines of the NCJFCJ, p. 137. )
7. Sharing Information. We recommend that legislation and policy permit the
appropriate disclosure of otherwise confidential information among participants in
the NACR process.
Commentary
Legislation should ensure that information about the child and family can be shared with
members of the extended family during the NACR process as appropriate but that those receiving
such information have a duty to treat it in confidence. Relevant information about the child,
parents, and other family members is likely to be known only to certain individuals directly
involved in child welfare agency or court actions related to the child. Ideally the persons affected
would voluntarily release such information for purposes of NACR but, especially when the court
mandates NACR, the voluntary cooperation may not be forthcoming. If such information is
withheld, the type of shared decision-making that is critical to successful NACR may be
impossible.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page V-12
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the Los Angeles Juvenile Dependency Court." Family and Conciliation Courts Review 35 (2):
202-205 (April 1997).
Barksy, A.E. "Why Parties Agree to Mediate: The Case of Child Protection." Family and
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Barksy, A.E. "Proposal for the Study of Mediation in Child Protection Cases." Unpublished
manuscript, Center for Child and Family Mediation, Toronto, 1991.
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Children and the Law, Washington DC, October 1997.
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League of America, 1997.
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(3): 1-11 (1996).
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and Neglect Cases: Learning From The Experience of New Zealand. Washington, DC: ABA
Center on Children and the Law and The Edna McConnell Clark Foundation, 1996.
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on Policy and Practice. Monsey, NY: Willow Tree Press, Inc., 1996.
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Outcome. Final Report. Ottowa: Social Sciences and Humanities Research Council of Canada,
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Four Sites Examining the Court 's Role in Diverting Families from Traditional Child Welfare
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Guidelines for Public Policy and State Legislation Governing Permanence for Children Page V- 1 6
CHAPTER VI: TERMINATION OF PARENTAL RIGHTS
INTRODUCTION
Termination of parental rights permanently ends the legal parent-child relationship. After
parental rights have been terminated, a child may be adopted without parental consent.
Termination may be voluntary, based on the informed consent of the parent, or, termination may
be involuntary, following court proceedings brought against the parent.
Severing of the parent/child relationship is a profoundly serious matter, but it is essential
legally to clear the way for adoption. Parental rights are rightly cloaked in constitutional
protections and should not be terminated without fiall and careful due process of law. State law
should allow parental rights to be terminated only when it is clearly necessary to ensure safe and
permanent homes for children.
Yet, termination is an appropriate remedy for many children caught up in the foster care
system. Once it becomes clear that a foster child cannot safely return home, termination of
parental rights usually is required. Most foster children unable to return home should be
adopted, and adoptions require termination of parental rights.
While these Guidelines recommend that States improve legal permanent placement
options not requiring termination of parental rights, termination will remain appropriate for most
children unable to return home. Most children unable to return home require new families in
which the parents, through adoption, will have complete and undivided legal responsibility for
the care of their children. Transferring complete parental responsibility to the adoptive parents
requires that all rights of the children's birth parents be ended.
There are sharp differences among State laws governing termination of parental rights.
In some States, termination statutes are themselves a significant barrier to securing permanent
and safe homes for abused and neglected children. A State may have limited grounds for the
termination of parental rights. Where statutory grounds for the termination of parental rights are
overly narrow or unclear, agencies sometimes do not seek termination and judges do not grant it
even when it is clear that a child should be adopted. Because of flaws in termination statutes,
public child welfare agencies and courts are sometimes unable to pursue adoption when they
should, thus leaving children in limbo and causing them to suffer further unnecessary emotional
loss.
Problematic statutory language may not be the main barrier to appropriate and timely
termination of parental rights, however. If termination of parental rights is often unnecessarily
delayed or denied. States are encouraged to review possible causes other than the language of
the statutes. For example, services to parents that could make it safe for a child to return home
may be delayed, agencies may have insufficient resources and staff to deliver the necessary
services, or agencies may lack adequate legal staff to prepare and process legal documents,
including petitions to terminate parental rights. Courts may be backlogged due to an inadequate
number of judges or court staff. Judges, attorneys and caseworkers may lack proper training on
Guidelines for Public Policy and State Legislation Concerning Permanence for Children Page VI- 1
termination standards and procedures, and termination may be denied because caseworkers or
judges falsely assume that certain children cannot be adopted.
GUIDELINES AND COMMENTARY
GUIDELINES FOR VOLUNTARY RELINQUISHMENT
1. Opportunity to Execute Voluntary Relinquishment: We recommend that State law
and policy ensure that parents are given an opportunity to execute a voluntary
relinquishment of parental rights at all stages of the court process.
Commentary
Public child welfare agencies rely more heavily than may be necessary on involuntary
judicial termination of parental rights to make adoption possible for foster children. In many
cases, the possibility of voluntary relinquishment of parental rights should be more extensively
explored.
Voluntary relinquishment of parental rights refers to a situation in which a parent agrees
to give up all rights to a child. After voluntary relinquishment, a child can be adopted without
further notice to the parent. Voluntary relinquishment is generally more humane and preferable
to involuntary termination of parental rights. First, when parents agree to give up parental rights,
an older child may have an easier time adjusting to the new adoptive home. That is, by giving
permission for the child to be adopted, parents may make it possible for the child to accept the
new home and to do so without guilt or a sense of divided loyalty.
Second, when parents relinquish their rights, they do not suffer the stress of the
adversarial trial for involuntary termination of parental rights. At an adversarial trial, parents are
forced to hear detailed testimony concerning their maltreatment of the child and how the child
has suffered at their hands. Discussions of voluntary relinquishment, by contrast, encourage
parents to be constructively involved in planning for their children.
Third, the child can be placed in a permanent home at an earlier time. By avoiding all the
steps associated with a trial as well as the significant possibility of a prolonged appeal, the
child's stay in foster care is shortened.
Fourth, the agency and court save important time and resources. A contested termination
of parental rights trial takes a great deal of agency staff time to prepare and present as well as
considerable time and effort by the attorneys for the parties and the court.
Fifth, relatives who are willing to adopt the child may not be willing to go through an
adversarial proceeding. Their willingness to adopt may depend upon gaining a voluntary
relinquishment. Parents may be more willing to relinquish when they know that a specific
relative or foster parent will be adopting.
Guidelines for Public Policy and State Legislation Concerning Permanence for Children Page VI-2
It is important tiiat there be assurances that parents are well informed and unpressured
when relinquishing parental rights. It is equally important that parents not be pressured to work
toward family restoration. Where parents recognize their inability to care for their children,
public agencies and courts should honor their wishes. However, no voluntary relinquishment
should be accepted if it is not in the child's best interest.
2. Process of Voluntary Relinquishment: We recommend that State law clarify the
process of voluntary relinquishment and establish specific procedures to ensure that
consent is voluntary and that parents fully understand their rights and alternatives.
Commentary
To ensure that relinquishment is really voluntary and parents are fully informed when
relinquishing their parental rights out of court. State law should clarify the procedures for taking
a voluntary relinquishment, to ensure that the following actions take place.
• Agencies advise parents of their right to consult with counsel before relinquishing
parental rights and of their right to court appointed counsel if they carmot afford to
retain their own counsel.
• Agencies provide counsel to parents who are minors.
• Qualified agency staff or social workers inform parents of the meaning and
consequences of adoption and consequences of withholding or giving false
information concerning the other parent.
• Qualified agency staff or social workers inform parents of options to voluntary
relinquishment, including available services and the right to oppose adoption in court.
• Relinquishment counseling is provided in a language in which the parents are fluent.
• Someone with no stake in the outcome takes the relinquishment; either the
relinquishment is taken in court before a judge or before a neutral representative of
the agency who is not the caseworker who counseled the parent.
• Parents are informed of the conditions under which they can withdraw consent after
having granted it (e.g., the deadline within which they can rescind their consent).
• Complete documentation of any discussions with parents concerning voluntary
relinquishment — including a summary of the content of the discussion as well as the
place, persons present, and the time and length of discussion — is submitted to the
court.
(For other detailed suggestions concerning procedures for volimtary relinquishment, see the
National Conference of Commissioners for Uniform State Laws, Uniform Adoption Act, §§2-
402 to 2-406, 1994.)
In many States, voluntary relinquishment is a common process for termination of parental
rights of foster children. Depending on State law and upon the circumstances of the individual
case, parents may voluntarily relinquish their rights by signing a document outside of court (e.g.,
in the office of a child welfare or adoption agency). Or parents may verbally relinquish their
rights on the record in the presence of a judge.
Guidelines for Public Policy and State Legislation Concerning Permanence for Children Page VI-3
Voluntary relinquishment can be encouraged, in appropriate cases, by mediation or
skilled relinquishment counseling. For example, where the outcome of an impending contested
case is clear and where parents do not really want to take the steps necessary to regain custody of
their children, it is helpful to offer such mediation or counseling. (See Chapter V, Non-
Adversarial Case Resolution, discussing the use of mediation to achieve voluntary
relinquishments of parental rights.) Note that, when properly handled, mediation and skilled
counseling help ensure that relinquishment decisions are well informed and fully voluntary.
Careful counseling and mediation reduce the likelihood that the relinquishment will be later
withdrawn or challenged.
It is important that agency staff and mediators handling relinquishment counseling be
comfortable and familiar with the parents' cultiu'e. This makes it more likely that relinquishment
counseling will succeed, helps avoid misunderstandings and failures of communication, and
leads to solutions that family members ultimately will accept.
3. Grounds to Withdraw Parental Consent or Voluntary Relinquishment: We
recommend that State law limit the grounds under which parental consent may be
withdrawn or voluntary relinquishments can otherwise be set aside.
Commentary
While State law should ensure the fairness of relinquishments, it should also reduce the
likelihood of collateral attacks by biological parents on termination or adoption decisions. There
are three circumstances in which recision of voluntary relinquishment should be possible: the
parent changes his or her mind (within a specified deadline); coercion; or fraud. First, where a
parent voluntarily relinquishes parental rights outside the courtroom, the law should specify a
short but reasonable period of time in which the parent may withdraw consent for any reason.
An example would be within 30 days (or ten days if the child has already been placed with
prospective adoptive parents). The Expert Work Group did not agree on the appropriate length
of time within which a voluntary relinquishment could be withdrawn based on a parent's change
of mind. However, the Group agreed that if voluntary consent to relinquish is taken in the
presence of the judge, there should be no period of time within which the parent can withdraw
consent without cause.
The law should specify a short but reasonable time within which a parent can seek to set
aside a voluntary relinquishment due to coercion or failure to advise of the right to counsel. For
example, the deadline might be within [10]-[30] days of the relinquishment. It might be within
[10]-[30] days after the parent is released from the hospital following the birth of the child, until
the court has granted termination of parental rights, or until the child is placed for adoption,
whichever comes last. The Expert Work Group did not agree on the amount of time that parents
should be allowed to set aside a termination or adoption based on coercion or failure to advise
them of their right to counsel.
However, there should be no deadline within which a parent can seek to overturn
termination of parental rights or adoption based on a fraudulent voluntary relinquishment. If a
Guidelines for Public Policy and State Legislation Concerning Permanence for Children Page VI-4
child has been stolen and voluntary relinquishment has been forged or if consent has been
obtained through misrepresentation, the law should not encourage such actions by upholding the
termination of parental rights or preserving the adoption.
At the same time, the reversal of a termination or adoption decision based upon an invalid
voluntary relinquishment should not necessarily require that custody be restored to the parent. If
a child has formed a parent-child bond with an adoptive parent and the adoptive parent was not
responsible for or aware of the fraud, the court should be empowered to award custody to the
adoptive parent if this action is clearly in the best interest of the child. (For other suggestions
concerning rules and procedures for withdrawal of voluntary relinquishment, see the National
Conference of Commissioners for Uniform State Laws, Uniform Adoption Act, §2-409, 1994.)
GUIDELINES FOR TERMINATION OF PARENTAL RIGHTS PROCEDURES
4. Parties to Termination of Parental Rights Proceedings: We recommend that State law
provide that the parties to a termination of parental rights are the child, agency, and
parent. Either the agency or the child should be able to file a petition for
termination of parental rights. In addition, the court should have the authority to
order the agency to file a petition.
Commentary
State law should provide that the child, the child's attorney and a representative of the
child welfare agency are authorized to file a petition to terminate parental rights. The child's
attorney or a guardian ad litem who is an attorney should be able to file a petition for termination
because it is the child's interests that are at stake and because agencies sometimes fail to do so
within a reasonable time after a child enters foster care. If a child has a non-attorney guardian ad
litem or CASA volunteer who is not an attorney, the guardian ad litem or CASA should be able
to obtain the assistance of counsel to file a petition. (For a discussion of foster parents' standing,
see Chapter VII, Standards for Legal Representation of Children, Parents, and the Child Welfare
Agency.)
Most petitions for the termination of parental rights are likely to continue to be filed on
behalf of public child welfare agencies. (For a discussion of how child welfare agencies should
be represented and the most appropriate relationship between the agency and their attorneys, see
Chapter VII.)
Courts should be empowered to order agencies to initiate termination proceedings when
there is reason to believe that there may be grounds for the termination of parental rights. This
helps assure that children unable to return home will be freed for adoption within a reasonable
time after entering foster care.
An argument against judicial power to order a party to file a petition to terminate parental
rights is that only a party and not the court can decide to initiate judicial proceedings. This
argument fails to take into account the unique nature of child abuse and neglect proceedings.
Guidelines for Public Policy and State Legislation Concerning Permanence for Children Page VI-5
First, a termination of parental rights proceeding should be considered part of the overall child
abuse or neglect case. The case is not completed until the child is returned home and the court
ends its supervision or the child is adopted or placed in permanent guardianship. Second, the
court is compelled to make a permanent placement decision for the child as the case proceeds.
Third, the court must be empowered to require that parties put evidence before it to enable the
court to make those choices. Without that power, the judge cannot ensure that a permanent
placement decision will be made within the time the law requires. When the court orders the
filing of a termination of parental rights petition, it has determined that there may be sufficient
facts to justify this action. The court is requiring the parties to produce evidence to permit the
court to determine whether or not the option of termination is legally justified. A court order to
file a termination petition does not constitute the court's judgement on the merits of the
termination petition but is a preliminary procedural order required by the court's duty to see that
a permanent plan is implemented for the child.
Some States give foster parents standing as parties if they have been the child's foster
parents for an extended period of time or if they have formed such a close relationship with the
child that they are the child's psychological parent. Foster parent standing may include the right
to file a petition to adopt or to terminate parental rights. These Guidelines take no position on
this issue. (For further discussion of foster parent standing, see Chapter IV, Court Process,
Guideline 32, Commentary.)
5. Timing for Filing a Termination of Parental Rights Petition: We recommend that
State law permit the filing of a termination of parental rights petition whenever
there is a ground for termination.
Commentary
Some State laws allow termination of parental rights petitions to be filed only after the
child has been in foster care for a specific period of time. For example, some State laws require
a certain period of time to have passed following the adjudication and disposition stages of the
case. In other States, if a petition to temiinate parental rights is not filed at the beginning of the
case, there is a mandatory waiting period.
Having mandatory waiting periods for termination effectively defeats the purpose of
some grounds for termination of parental rights. For example, when an infant has been
abandoned and there are grounds for termination based on a brief but unsuccessful diligent effort
to locate and identify the parent, a waiting period undermines the legislative intent to provide a
speedy adoption. Similarly, these Guidelines recommend certain grounds for termination based
on extreme and hopeless circumstances in which reunification services are not required. Such
grounds are undermined by a mandatory waiting period.
Where termination grounds do not require agency efforts to help parents improve, there is
no logical reason to delay the termination petition. As long as the petition alleges proper
grounds for termination, it should be possible to file at any time.
Guidelines for Public Policy and State Legislation Concerning Permanence for Children Page VI-6
ASFA and CAPTA require, subject to exceptions, early filing of termination of parental
rights petitions in certain specific situations. ASFA requires the filing of termination of parental
rights petitions when parents have committed certain crimes against children and when infants
have been abandoned. [ASFA §302, 42 U.S.C. §675(5)(E).] CAPTA requires "expedited
termination of parental rights" for abandoned infants. [42 U.S.C. §5106a(b)(2)(a)(xi)(I).]
6. Time Limits for All Stages of Termination of Parental Rights Proceedings: We
recommend that State law specify standard time limits for all stages of termination
of parental rights proceedings. State legislatures should also ensure that courts and
agencies have the resources and capacity to meet such deadlines.
Commentary
Timely termination proceedings enhance children's prospects of a successful adoption.
Long delays often reduce children's chances for adoptive placement and increase their
psychological vulnerability.
Court procedures for the termination of parental rights should encourage timely decisions
and eliminate inappropriate delay in all stages of termination of parental rights proceedings.
Statutes or court rules should establish deadlines within which courts complete termination of
parental rights trials. For example, statutes or court rules might specify that a termination of
parental rights trial be completed within 60 or 90 days after service of process on the parent. A
judge might be empowered to make exceptions to such time limits, but only where there are
special circumstances justifying the delay and only where these circumstances are documented in
the court record.
There also should be detailed time lines for all stages of the termination case (most
probably set forth in court rules). At or before the conclusion of each hearing, the date and time
of the next hearing should be scheduled. Strict caseflow management principles should apply as
in other stages of the court process. (See Chapter IV, Court Process.) Chapter 8 of Resource
Guidelines: Improving Court Practice in Child Abuse & Neglect Cases (National Coimcil of
Juvenile and Family Court Judges 1995) sets forth specific time lines for the different stages of
termination of parental rights proceedings, beginning with the filing of the petition. (See pages
91-94.) For example, the Resource Guidelines suggest that there be a pretrial hearing within 30
days after the filing of the termination petition and that, if service of process is complete by that
time, the trial be set within another 30 days.
Unlike criminal cases, when timetables or deadlines for child protection are not met,
cases should not be dismissed with prejudice. Instead, enforcement might occur through self-
monitoring by trial courts or monitoring by higher State courts.
State legislatures and supreme courts should be aware of the causes of court delay when
setting timetables for court proceedings. Delays in termination of parental hearings may be
partly the result of shortages in judges, court staff, legal assistance to the agency or agency
casework staff If so, the courts may need to ask the legislature to provide further financial
Guidelines for Public Policy and State Legislation Concerning Permanence for Children Page VI-7
resources to the courts (e.g., for added judges and staff) and agencies to make it possible to meet
the new deadhnes.
The State courts should inform the legislature of what it will take to correct the specific
problem of delays in termination cases. The legislature should be aware that the delays in
termination of parental rights increase other State expenditures; termination delays prolong
costly foster care placements and increase agencies' administrative costs.
7. Trials Without Juries: We recommend that State law provide that termination of
parental rights cases are tried without a jury.
Commentary
Among the reasons for having termination proceedings tried by judges rather than juries
are the following. First, jury trials proceed more slowly than trials by judges and thus delay
permanency for children. Second, jury trials take far more attorney and court time than trials by
judges, thus crowding the court docket and preventing attorneys from preparing other cases.
This further delays permanency for children. Third, for reasons described elsewhere, the quality
of decisions in child abuse and neglect cases is better when a single judge hears all stages of the
same case. (See Chapter IV, Court Process.) Few States currently provide for jury trials on the
question of termination of parental rights and, even in those States, jury trials are seldom used.
If a State chooses to allow a right to a jury trial in termination of parental rights cases,
however, all parties including the State, the parents, and the child should have the right to request
ajury.
8. Steps Following Termination of Parental Rights Review and Termination Order
Setting Requiring Revised Plan: In order to ensure that reasonable efforts are made
to achieve a timely permanent plan for the child, we recommend that State law
require that at the conclusion of the hearing in which a court decides whether to
terminate parental rights, the court will:
a. Set a specific time for the review to take place within a specified time.
b. Require the filing of a revised plan and progress report a specified number of
days prior to the review hearing.
Commentary
The ABA Court Rules to Achieve Permanency for Foster Children recommend, in cases
where termination is granted, strict deadlines for the filing of a post-termination placement plan,
a post-termination review, and the filing of a pre-review report. (Rule 87.)
If the court orders termination of parental rights, the next hearing will be a post-
termination review designed to ensure speedy progress to achieve adoption of the child. The
Expert Workgroup did not recommend specific time limits for the review, but did suggest varied
time periods, including 60, 90, or 180 days following termination of parental rights.
Guidelines for Public Policy and State Legislation Concerning Permanence for Children Page VI-8
GROUNDS FOR TERMINATION OF PARENTAL RIGHTS: GENERALLY
9. Termination of Parental Rights Grounds, Generally: We recommend that State law
authorize the court to terminate parental rights if the court flnds as follows:
a. By clear and convincing evidence, that one or more of the statutory grounds
exists (See Guidelines 11-22); and
b. By a preponderance of the evidence that termination is in the best interests of
the child (See Guidelines 23-26).
Commentary
State law should authorize termination of parental rights when: (a) a parent cannot or will
not provide a safe and permanent home for the child within a reasonable time; and (b)
termination of parental rights is the best plan for the child, taking into account other options.
Termination should not be pursued when the parent will provide a safe home or when
termination is not best for the child. The challenge in drafting State termination of parental
rights statutes is to encompass all circumstances in which termination is appropriate without
including those in which it is not.
Grounds for termination of parental rights should be clear. These Guidelines
recommend a set of specific and separate groimds for termination of parental rights. That is,
each ground, standing alone, may support the termination of parental rights if termination is also
in the child's best interests. By creating separate and self-contained grounds for termination,
States can make it clear under which types of circumstances termination of parental rights is
authorized. (For a discussion of grounds for termination of parental rights, including their
structure, see M. Hardin & R. Lancour, Early Termination of Parental Rights: Developing
Appropriate Statutory Grounds 9-29, ABA 1996.)
Separate termination grounds can also make it clear whether or not, under specified
circumstances, the child welfare agency must have made efforts to reunify the family. By
contrast, in States with legislation that lists factors supporting termination rather than separate
grounds, there are no clear circumstances justifying termination. For example, where one factor
to be considered in all termination cases is whether the child welfare agency has made efforts to
reunify the family, it is unclear when, if ever, termination is possible without such efforts.
Several States have recently amended their laws to make it clear when termination is
possible without prior services to reunify the family. For example, Arizona recently amended its
law to delete the requirement that the court consider, in all termination cases, "the availability of
reunification services and whether the parent participated in those services." [Ariz. Stat. §8-
533(B), as amended by Ariz. Laws 1998, ch. 276, §13.] Arizona law now provides that
termination can be ordered if one or more grounds apply and termination is in the best interests
of the child. (Id. ) Some grounds require such services and some do not. Florida recently
amended its termination grounds to specify' that for five of its nine grounds for termination
"reasonable efforts to preserve and reunify families shall not be required." [Fla. Sess. Laws, Ch
98-403 §88, to be codified as Fla. Stat. §39.806(2).]
Guidelines for Public Policy and Stale Legislation Concerning Permanence for Children Page VI-9
Santosky v. Kramer, 455 U.S. 745 (1982), requires that grounds for the termination of
parental rights be proved by clear and convincing evidence. Once grounds are established, a
court may terminate parental rights if there is a preponderance of evidence that it is in the best
interests of the child. The parental rights of an Indian child may not be terminated, however,
unless there is evidence beyond a reasonable doubt, including testimony of qualified expert
witnesses, that continued custody by the parent or Indian custodian will likely result in serious
emotional or physical damage to the child. [25 U.S.C. §1912(f).]
10. Grounds for Termination and Criteria for Not Requiring Reunification Services: We
recommend that State law prohibit leaving children in legal limbo following a
judicial decision relieving the agency of the responsibility to provide reunification
services.
Commentary
States need to examine their laws and procedures to make sure that following a judicial
decision not to require reunification services for a child, it will legally be possible to secure
another permanent home for the child. Under certain circumstances, it should be legally possible
to terminate parental rights. If a child in foster care will not be returned home, termination
should be possible. If reunification services will not be provided for the child's family, and if
adoption is in the child's best interests (as opposed to guardianship by a relative or some other
permanent caretaker), it should be legally possible to terminate parental rights. Otherwise, due
to inadequacies in State law, the child will remain indefinitely in foster care.
States need to consider carefully and debate what cormection, if any, there should be
between the circumstances in which reunification services are not required and particular
grounds for the termination of parental rights. This issue is complicated. The Expert Work
Group concluded, however, that in order to avoid leaving children in foster care limbo. State law
should ensure that for those circumstances in which reunification services are not required, there
are applicable grounds for the termination of parental rights. While the criteria for not requiring
reasonable efforts need not be the same as grounds for termination, they reasoned, the State
should take care to avoid situations in which a child will remain in foster care without efforts to
reunify his or her family. In this situation, it is not possible to terminate parental rights although
adoption is in the child's best interests.
The Expert Work Group agreed that there should be grounds for termination that will
permit cases to move forward when it is decided that reasonable efforts to reunify are not
required. However, there was no consensus about whether all termination grounds must have a
corresponding situation where reasonable efforts would not be required.
COMMON GROUNDS FOR THE TERMINATION OF PARENTAL RIGHTS
The Expert Work Group recommends the following types of grounds for the termination
of parental rights. These Guidelines make suggestions concerning what should be included in
such grounds.
Guidelines for Public Policy and State Legislation Concerning Permanence for Children Page VI- 10
11. Failure to Improve: We recommend that State law include a ground authorizing
termination of parental rights based on the parent's failure to improve.
Commentary
State law should include a ground authorizing termination of parental rights when,
despite the diligent efforts of the agency to make it possible for the child to return home, the
parent has failed, for a specified time, to correct the circumstances causing the child to remain in
foster care. The majority of the Expert Work Group recommended a minimum of one year and a
minority recommended 6 months. Still others recommended that a time not be specified.
States enacting such time limits need to decide not only the length of time, but also when
the time period begins. The following are three possibilities for when the time period begins: (a)
the time that the agency first offers services, possibly when the child is still at home; (b) the time
a child enters foster care; or (c) the time that the court approves a reunification plan (e.g., at
disposition).
States should also note that Federal law requires initiation of proceedings to terminate
parental rights for children who have been in foster care for 15 out of the previous 22 months,
except in specified circumstances (such as a compelling reason that termination is not in the
child's best interests). [See 42 U.S.C. §675 (5) (E) and §103 (c) of ASFA.]
In most jurisdictions, the failure to improve ground for termination of parental rights is
the most commonly used. To prove this ground, the agency shows that the agency has made a
good effort to help the parent, but the parent has failed to improve. That is, even with the
agency's efforts to help, the parent has failed to correct those specific conditions leading to the
child's removal or has created new barriers to the child's safe return. The parent either persisted
in the behaviors that originally caused the child to be placed in foster care or engaged in new
behaviors making it impractical or dangerous to return the child home.
The Expert Work Group disagreed about whether termination of parental rights should be
allowed when important services to preserve the family were not available. The majority
thought that if termination is allowed when services are not available States will be encouraged
to terminate parental rights rather than to spend money, when needed, to preserve families.
A minority thought that children should not have to spend years in foster care because needed
services to families do not exist. They said there are better ways to encourage the development
of services. They questioned whether requiring courts to refuse to terminate parental rights in
such cases actually would cause States to expand services for families.
Wisconsin has enacted a ground for termination of parental rights consistent with this
Guideline, except that it allows the parent 6 months to demonstrate "substantial progress."
Specifically, Wisconsin law authorizes termination of parental rights based on "continuing need
of protection or services," which is established by proving all of the following:
Guidelines for Public Policy and State Legislation Concerning Permanence for Children Page VI- 1 1
(a) That the child has been adjudged to be in need of protection or services and placed, or
continued in a placement, outside his or her home pursuant to one or more court orders
[citing Wisconsin statutes].
(b) 1. In this paragraph, "diligent effort means an earnest and conscientious effort to take
good faith steps to provide the services ordered by the court," which takes into
consideration the characteristics of the parent or child, the level of cooperation of the
parent and other relevant circumstances of the case.
2. That the agency responsible for the care of the child and the family has made a
diligent effort to pro^■ide the services ordered by the court.
(c) That the child has been outside the home for a cumulative total period of 6 months or
longer pursuant to such orders: and that the parent has failed to demonstrate substantial
progress toward meeting the conditions established for the return of the child to the
home. There is also a substantial likelihood that the parent will not meet these conditions
within the 12-month period following the [adjudication].
Wise. Stat. §48.415(intro)(b), (2), asWndedby 1997 Wise. Act 35. §98.
Virginia has also enacted a ground for termination of parental rights that is consistent
with this Guideline. Under \'irginia law. parental rights of a child placed into foster care can be
terminated if the court fmds that:
The parent or parents, without good cause, have been unwilling or unable within a
reasonable period not to exceed twelve months from the date the child was placed in
foster care to remedy substantially the conditions which led to or required continuation of
the child's foster care placement, nouvithstanding the reasonable and appropriate efforts
of social, medical, mental health or other rehabilitati\'e agencies to such end.
Proof that the parent or parents, without good cause, have failed or been unable to make
substantial progress towards elimination of the conditions which led to or required
continuation of the child's foster care placement in accordance with their obligations
imder and within the time limits or goals set forth in a foster care plan filed with the court
or any other plan jointly designed and agreed to by the parent or parents and a public or
private social, medical, mental health or other rehabilitative agency shall constitute prima
facie evidence of this condition.
The coun shall take into consideration the prior efforts of such agencies to rehabilitate the
parent or parents prior to the placement of the child in foster care.
Va. Code Aim. §16.1-283(C)(2) (1998), as amended by 1998 Va. Laws, Ch. 550, §1.
Note that under Virginia law, the improvement period begins when the child is placed
into foster care.
Ohio's "failure to improve" ground for termination is consistent with this Guideline,
except that no time period is specified. Ohio law authorizes termination of parental rights if
termination is in the best interest of the child and if one of several grounds establish that the child
"carmot be placed with either of his parents within a reasonable time or should not be placed
with his parents." [Ohio Rev. Code .-^nn. §2151. 414(B)(1), 1998.] Ohio's failure to improve
eround reads as follows:
Guidelines for Public Policy and Stale Legislation Concerning Permanence for Children Page VI- 1 2
Following the placement of the child outside the child's home and notwithstanding
reasonable case planning and diligent efforts by the agency to assist the parents to remedy
the problems that initially caused the child to be placed outside the home, the parent has
failed continuously and repeatedly to substantially remedy the conditions causing the
child to be placed outside the child's home. In determining whether the parents have
substantially remedied those conditions, the court shall consider parental utilization of
medical, psychiatric, psychological, and other social and rehabilitative services and
material resources that were made available to the parents for the purpose of changing
parental conduct to allow them to resume and maintain parental duties.
Ohio Rev. Code Ann. §2151.414(E)(1) (1998).
Note that under this ground, like the others, the agency must have fulfilled its duty to
assist the parent but, despite those efforts, the parent failed to improve.
Arizona has enacted an interesting statutory ground for termination of parental rights that
also is consistent with this Guideline. Arizona law, making a distinction betw-een parents who
have willfully or neglectfully failed to improve and those who have been unable to do so,
authorizes termination if:
[T]he child is being cared for in an out-of -home placement under the supervision of the
juvenile court, the division or a licensed child welfare agency, that the agency responsible
for the care of the child has made a diligent effort to provide appropriate reunification
services and that either of the following circumstances exists:
(a) The child has been in an out-of-home placement for a cumulative total period of nine
months or longer pursuant to court order and the parent has substantially neglected or
willfully refused to remedy the circumstances which cause the child to be in an out-of-
home placement.
(b) The child has been in an out-of-home placement for a cumulative total period of
fifteen months or longer pursuant to court order, the parent has been unable to remedy the
circumstances which cause the child to be in an out-of-home placement and there is a
substantial likelihood that the parent will not be capable of exercising proper and
effective parental care and control in the near future.
Ariz. Stat. §8-53 3 (B)(7), as amended by Ariz. Laws 1998, ch. 276, §13.
12. Abandonment and Parental Identity Unknown: We recommend that State law
authorize termination of parental rights when the parent has abandoned the child
and the identity of the parent is unknown.
Commentary
State law should authorize termination of parental rights when the parent has abandoned
the child for a specified time and the identity of the parent is unknown and cannot be ascertained
despite diligent efforts to do so. Suggested time periods for abandonment varied, including 30,
60, and 90 days.
Guidelines for Public Policy and State Legislation Concerning Permanence for Children Page VI- 1 3
Sometimes children are abandoned with no identifying information about the identity of
the parents. When parents' identities cannot be determined, statutory grounds should allow
timely decisions to terminate parental rights. On the other hand, it is necessary that agencies
attempt to locate parents, to avoid termination in situations where there are interested non-
custodial parents and where children have been kidnapped or lost.
Federal law requires that termination petitions be filed when a court has determined a
child to be an abandoned infant (as defined under State law). [ASFA, Public Law 105-89,
§ 103(a), amending §475 of the Social Security Act, 42 U.S.C. §675(5)(E).] And, CAPTA
requires that States have effective means for the "expedited termination of parental rights in the
case of any infant determined to be abandoned under State law..." [CAPTA, §107, 42 U.S.C.
§§5106a(b)(2)(A)(xi)(I).]
Michigan has enacted a ground for termination of parental rights that is consistent with
this Guideline. Michigan authorizes termination of parental rights when:
The parent of the child is unidentifiable, has deserted the child for 28 or more days, and
has not sought custody of the child during that period. For the purposes of this section, a
parent is unidentifiable if the parent's identify cannot be ascertained after reasonable
efforts have been made to locate and identify the parent.
Mich. Comp. Laws, §712A.19b(3)(a)(I) (1998).
Wisconsin's statutes require a longer search, but do not require that the identity of the
parent be unknown, authorizing termination when:
The child has been left without provision for its care or support; the petitioner has
investigated the circumstances surroimding the matter and for 60 days has been unable to
find either parent.
Wise. Stat. §§48.415(intro)(a), 48.415(l)(a)(l), as amended by 1997 Wise. Act 35, §98.
Pennsylvania statutes authorize termination when:
The child is in the custody of an agency; having been found under such circumstances
that the identity or whereabouts of the parent is unknown and cannot be ascertained by
diligent search and the parent does not claim the child within three months after the child
is found.
Pa. Stat. Ann. tit. 23 §251 1(a)(4) (1998).
Note that it is required that the parent's identity or whereabouts be unknown.
13. Abandonment of Infant by an Unmarried Father: We recommend that State law
authorize termination of parental rights for abandonment of an infant by an
unmarried father.
Guidelines for Public Policy and State Legislation Concerning Permanence for Children Page VI- 14
Commentary
State law should authorize termination of parental rights of a father who is not married to
the mother of an infant less than one year old when the father abandons the child under certain
conditions. If the father failed to visit the child, establish paternity, or provide financial support
within 30-60 days after becoming aware of the child's birth, termination should be authorized.
The majority of the Expert Work Group was concerned about the strictness of the time
requirements imposed on the unmarried father. If the father did not attempt to seek custody
within 30 days after becoming aware that the child was placed into foster care, although the
father was informed of the opportunity to seek custody, termination should be authorized.
This ground would require the child welfare agency to diligently search for both parents
of a child before a termination of parental rights petition is granted. If a father is located soon
after the birth of a child and was previously unaware of the child's birth. State law should allow
the father to take immediate steps to seek custody of the child. The father's failure to take such
steps, should be grounds for termination. The agency has a responsibility to search for both
parents not only out of fairness to the parents, but also because extended family ties may be
important to the child.
Texas has enacted a ground for the termination of parental rights based on abandonment
of an infant by a father. Texas law authorizes termination of parental rights when a father:
Volimtarily and with knowledge of the pregnancy, abandoned the mother of the child
beginning at a time during her pregnancy with the child and continuing through the birth,
failed to provide adequate support or medical care for the mother during the period of
abandonment before the birth of the child, and remained apart from the child or failed to
support the child since the birth.
Tex. Fam. Code Ann. §161.001(1)(H) (1998).
Arizona authorizes termination of parental rights when a parent "fails to file a paternity
action within 30 days of completion of service of notice" in an adoption proceeding. [Ariz. Rev.
Stat. Ann. §8-533(B)(5), 1998.]
Pennsylvania law deals with abandonment of newborns by unmarried fathers through the
following ground for termination:
In the case of a newborn child, the parent knows or has reason to know of the child's
birth, does not reside with the child, has not married the child's other parent, has failed
for a period of four months immediately preceding the filing of the petition to make
reasonable efforts to maintain substantial and continuing contact with the child and has
failed during the same four-month period to provide substantial financial support for the
child.
Pa. Stat. Ann. tit. 23 §251 1(a)(6) (1998).
Guidelines for Public Policy and State Legislation Concerning Permanence for Children Page VI- 1 5
Note that this ground might also apply to an unwed mother who abandons a child at birth.
Also the waiting period of four months is longer than the (60-day) maximum recommended by
this Guideline.
14. Extreme Parental Disinterest: We recommend that State law authorize termination
of parental rights based on extreme parental disinterest in a child.
Commentary
State law should authorize termination of parental rights when a parent has demonstrated
extreme disinterest in a child for 6 months if the child is three or older or three months if the
child is less than three. Extreme disinterest means that the parent made only minimal contact or
communication with the child. There is no proof of extreme disinterest, however, when a parent
did not have the ability or opportunity to maintain greater contacts or involvement with the child.
There also is no proof of extreme disinterest when the parent does not know of the child's
existence.
The prolonged lack of parent-child contact should be enough to justify termination of
parental rights even when it has occurred before a child protection agency has become involved
in a case. A parent's intentional failure to maintain contact with a child, occurring without
justification and for a prolonged period, demonstrates that the parent is not interested in or
committed to the child. If this has occurred before the child protection agency has been
involved, the agency should carefully evaluate the appropriateness of developing a reunification
plan for that parent. (See Hardin & Lancour, op. cit., 31-37.)
Failure of parents to be actively involved in the lives of their children has a significant
impact on their self-esteem and development. All children need their lives stabilized as soon as
possible by the establishment of permanent, safe, nurturing care taking arrangements. Recent
knowledge about the critical period of a child's development between birth and his or her early
years suggests that parental disinterest and neglect will have long term negative consequences
for the child's development. As a result, some jurisdictions have adopted shorter time frames for
parental disinterest based on the age of the child.
Ohio has enacted a statutory ground for termination of parental rights that is generally
consistent with this Guideline, except that no time periods are specified. The relevant ground is
the following:
The parent has demonstrated a lack of commitment toward the child by failing to
regularly support, visit, or communicate with the child while able to do so, or by other
actions showing an unwillingness to provide an adequate permanent home for the child.
Ohio Rev. Code Ann. §2151.414(E)(4) (1998).
Note that the parent need not have totally failed to support, visit, or communicate with the child.
Rather, failure to "regularly" support, visit or communicate is sufficient. Note also that parental
lack of commitment cannot be shown if the parent was unable to support, visit, or communicate
with the child.
Guidelines for Public Policy and State Legislation Concerning Permanence for Children Page VI- 1 6
Oklahoma's statutory grounds for termination of parental rights based on parental
"abandonment" are also essentially consistent with this Guideline. Two of Oklahoma's
definitions of abandonment are the following:
[T]he parent has voluntarily left the child alone or in the possession of another who is not
the parent of the child and expressed a willful intent by words, actions, or omissions not
to return for the child, or
[T]he parent fails to maintain a significant relationship with the child through visitation
or communication for a period of six (6) consecutive months out of the last fourteen ( 1 4)
months immediately preceding the filing of a petition for termination of parental rights.
Incidental or token visits or communications shall not be construed or considered in
establishing whether a parent has maintained a significant relationship with the child.
Okla. Stat. Ann. Tit. 10 §7006- 1.1 (A)(2)(b), (c) (1998), as amended by 1998 Okla. Enr.
H.B. 2826 §20.
Note that Oklahoma does not set a different time period based on the age of the child and
adds a ground based on the clear expression of parental intent to abandon the child.
15. Serious Crimes Against Children: We recommend that State law authorize
termination of parental rights based on a parent's serious crimes against children.
Commentary
Certain crimes toward children are serious enough, in themselves, to justify termination
of parental rights. Accordingly, State law should authorize termination of parental rights when a
parent commits specified serious crimes against children. This should include, but not be limited
to, crimes specified in Federal law.
Federal law requires that the conviction of certain crimes be grounds for the termination
of parental rights. Specifically, CAPTA requires as a condition for receiving Federal funds, that
State laws include criminal convictions for certain crimes against children as grounds for
termination of parental rights. Specifically, the law requires that
...conviction of any one of the [specified felonies] constitute grounds under State law for
the termination of rights of the convicted parent as to the surviving children (although
case-by-case determinations of whether or not to seek termination of parental rights shall
be within the sole discretion of the State).
CAPTA, §106, 42 U.S.C. §§5106a(b)(2)(A)(xiii).
Thus, the State may decide on a case-by-case basis whether to seek termination, but State
law must include the offenses as grounds for termination of parental rights.
The crimes listed in CAPTA as mandatory grounds for the termination of parental rights
are the same as the crimes listed in ASFA, in which reunification services are not required:
Guidelines for Public Policy and State Legislation Concerning Permanence for Children Page VI- 1 7
• Murder as defined by 18 U.S.C. §1 1 1 1(a) of another child of the parent;
• Voluntary manslaughter as defined by 1 8 U.S.C. § 1 1 1 1 (a) of another child of the
parent;
• Aiding or abetting, attempting, conspiring, or soliciting to commit such murder or
voluntary manslaughter; or
• Felony assault that results in the serious bodily injury to the surviving child or another
child of such parent. [CAPTA, §107, 42 U.S.C. §§5106a(b)(2)(A)(xii).]
CAPTA also provides that reunification services are not required for parents convicted of these
crimes.
Note that in the above list of crimes, the definitions of murder and manslaughter are taken
from Federal law. States wishing to specify murder or manslaughter of a sibling as a ground for
the termination of parental rights should include both the Federal and State statutory definitions
of those terms if there are inconsistencies.
The list of crimes in CAPTA is very narrow and applies to a small fraction of children in
foster care. While States must include the above list of crimes in their termination grounds in
order to comply with CAPTA, States are free to include a more complete list of crimes
constituting forms of severe or extreme child abuse and neglect.
This Guideline recommends including grounds that are more extensive than Federal
requirements. For example, a State may choose to include certain extreme forms of child sexual
abuse where there is no serious bodily injury. Each State should carefully and thoroughly review
its criminal statutes to decide which should be grounds for the termination of parental rights.
Another important addition to the Federal grounds is that crime-based grounds for
termination of parental rights should not be limited to crimes against siblings. There should be
grounds for termination where the parent commits certain serious crimes against other children
in the household and where the circumstances surrounding the commission of the crimes
demonstrate that the parent might victimize the child in a similar way. Severely injuring another
child in the household in the course of committing a crime might constitute grounds for the
termination of the parent's rights.
16. Extreme or Repeated Abuse or Neglect: We recommend that State law authorize
termination of parental rights based on the extreme or repeated abuse or neglect of
children.
Commentary
State law should authorize termination of parental rights when the parent's abuse or
neglect of the child, a sibling, or other child in the household was so extreme or repeated that any
plan to return this child home would present an unacceptable risk. (See Hardin & Lancour, op.
cit., 49-60.) Certain acts or patterns of behavior toward children are sufficient, in themselves, to
justify termination of parental rights without prior efforts by the child welfare agency to help the
Guidelines for Public Policy and State Legislation Concerning Permanence for Children Page VI- 1 8
parents improve. Certain acts are so extreme that they make it too dangerous to risk returning
the child home. Certain patterns of behavior demonstrate that there is no realistic likelihood of
parental rehabilitation.
For example, acts of torture and extreme cruelty toward children may demonstrate
behaviors that place the child at imminent and continued risk. If parents have abused children
badly enough to cause serious injury, it may not make sense to risk future parent-child contacts.
Factors a court might consider in determining whether there is extreme and repeated abuse or
neglect include:
• The seriousness of the injury or harm to the child or risk of injury or harm associated
with the abuse or neglect;
• Whether the abuse or neglect is the result of a parental character disorder or
compulsion unlikely to change (e.g., as shown by extreme cruelty or sexual abuse);
and
• The frequency and number of incidents of abuse or neglect.
Note that the above factors include not only the severity and frequency of the acts of
maltreatment, but also characteristics of the parent committing the maltreatment. While a
sexually abusive or sadistic parent may have the capacity or ability to care for the child (and
therefore not come under Guideline 19), the abusive behavior may be the result of profound
character flaws or compulsions that are unlikely to respond to treatment.
Grounds for termination based on extreme or severe child abuse or neglect should not be
limited to crimes that currently exist in State statutes. While it can be helpful to cross reference
to certain definitions of crimes when enacting such grounds for termination, the existing
definitions of crimes are not sufficiently inclusive. First, existing definitions of crimes may not
cover the full range of extreme child maltreatment that should be grounds for termination of
parental rights.
Second, when injuries to children are sufficiently severe or where certain forms of sexual
abuse have been committed and, in either case, there is danger of recurrence, criminal law
requirements concerning intent or state of mind should not apply. For example, if a child is
permanently physically disfigured or disabled as the result of parental abuse under circumstances
that might be repeated, it should not be necessary to show intent.
Colorado has enacted a statutory ground for termination of parental rights that is
generally consistent with this Guideline. Colorado law authorizes termination if:
...[T]he child is adjudicated dependent or neglected and the court finds that no
appropriate treatment plan can be devised to address the unfitness of the parent or
parents. In making such a determination, the court shall find one of the following as the
basis for unfitness:
(II) A single incident of serious bodily injury or disfigurement of the child.
* * *
(IV) Serious bodily injury or death of a sibling due to proven parental abuse or neglect.
Guidelines for Public Policy and State Legislation Concerning Permanence for Children Page VI- 1 9
(V) An identifiable pattern of habitual abuse to which another child has been subjected
and, as a result of which, a court has adjudicated another child as neglected or dependent
based upon allegations of sexual or physical abuse, or a court of competent jurisdiction
has determined that such abuse has caused the death of another child.
(VI) An identifiable pattern of sexual abuse of the child.
Colo. Rev. Stat. §19-3-604(l)(b), as amended by 1998 Colo. Legis. Serv. Ch. 311 §6
(H.B. 98-1307).
Note that the Colorado grounds include habitual abuse or neglect of siblings, but do not
include a pattern of habitual non-sexual abuse to the same child where such abuse does not cause
serious bodily injury or disfigurement.
South Carolina law includes a ground that is consistent with this Guideline, except that it
does not refer to types of abuse or neglect that suggest parental character disorders or
compulsions unlikely to change:
The child or another child in the household has been [maltreated as defined under South
Carolina law] and because of the severity or repetition of the abuse or neglect, it is not
reasonably likely that the home can be made safe within twelve months. In determining
the likelihood that the home can be made safe, the parent's previous abuse or neglect of
the child or another child in the home may be considered.
S.C. Code Ann. §20-7-1572(1) (1998).
California law authorizes termination of parental rights without prior services to reunify
the family based on severe sexual abuse, the infliction of severe physical harm to the child or a
sibling, and abandonment constituting a severe danger to the child. [Cal. Welf & Inst. Code
§361. 5(b)(6), (9), as amended by 1997 Cal. Laws, Ch. 793, §17.] The terms are defined in detail.
Under California law, in addition to proving severe sexual abuse, severe physical harm, or
abandonment constituting a severe danger, the court must also make the factual findings that
reunification services will not benefit the child and, at a subsequent hearing, that termination is
in the best interests of the child. (For a complete explanation of the California statutory scheme,
see M. Hardin & R. Lancour, supra, at 50-58.)
17. Prior Termination of Parent's Rights to Sibling: We recommend that State law
include a ground authorizing termination of parental rights based on prior
termination of the parent's rights to a sibling.
Commentary
State law should include a ground authorizing termination of parental rights when all of
the following circumstances apply. First, the parent abused or neglected a child's sibling.
Second, following the abuse of the sibling, an agency made diligent and appropriate efforts to
help the parent improve as were reasonable, but parental rights to the sibling were later
terminated. And third, after parental rights to the sibling were terminated, the parent abused or
neglected the child who is the subject of the current termination proceedings and the child was
placed into foster care.
Guidelines for Public Policy and State Legislation Concerning Permanence for Children Page VI-20
Under this ground, unlike the failure to improve ground, it is unnecessary to wait a year
or to provide rehabilitative services to the parents before terminating parental rights. The basic
premise of this ground is that when a parent has a history of prior abuse or neglect of other
siblings, the State should not have to ignore that history or start over again to work to rehabilitate
the parent. If an agency's efforts to help the parents failed in the past and the parent has repeated
the abuse or neglect, there is no reason to assume that further efforts will succeed. (See Hardin
& Lancour, op. cit., 44-49.)
Oklahoma has enacted a statutory groimd for termination of parental rights that is
consistent with this Guideline. Oklahoma law authorizes termination if:
... a subsequent child has been bom to a parent whose parental rights to any other child
have been terminated by the court; provided, that the applicant [party seeking
termination] shall show that the condition which led to the making of the finding which
resulted in the termination of such parent's parental rights to the child has not been
corrected. As used in this paragraph, the term 'applicant' shall include, but not be limited
to, a district attorney or the child attorney.
Okla. Stat. Ann. Tit. 10 §7006-1. 1(A)(6) (1998), as amended by 1998 Okla.
Enr. H.B. 2826 §20.
Note that the Oklahoma ground does not require reunification services but does require
that the conditions leading to the prior termination continue to exist.
Iowa has enacted a termination ground that is generally consistent with this Guideline.
Iowa law requires that:
(1) The child has been adjudicated a child in need of assistance pursuant to [citing Iowa
law].
(2) The court has terminated parental rights pursuant to [citing Iowa law] with respect to
another child who is a member of the same family.
(3) There is clear and convincing evidence that the parent continues to lack the ability or
willingness to respond to services which would correct the situation.
(4) There is clear and convincing evidence that an additional period of rehabilitation
would not correct the situation.
Iowa Code. Ann. §232.116(1 )(k) ( 1 998)
The Rhode Island ground is similar to the Iowa ground. It requires that:
The child has been placed with the department for children, youth, and families and the
court has previously terminated parental rights to another child who is a member of the
same family and the parent continues to lack the ability or willingness to respond to
services which would rehabilitate the parent and provided further that the court finds it is
improbable that an additional period of services would result in reunification within a
reasonable period of time considering the child's age and the need for a permanent home.
R.I. Gen. Laws §15-7-7 (1998).
Guidelines for Public Policy and State Legislation Concerning Permanence for Children Page VI-2 1
18. Parental Incapacity: We recommend that State law authorize termination of
parental rights based on parental incapacity that makes the parent unable to care
for the child who is the subject of the termination proceeding.
Commentary
State law should authorize termination of parental rights if the parent has a physical,
emotional, or mental incapacity that is so severe that the parent cannot care for the child, taking
into account the particular needs and condition of the child. There must also be no available
course of treatment that can prepare the parent to care for the child within a reasonable time.
This ground assumes that the degree of parental incapacity is severe enough that the parent
carmot care for and protect the child and that no services can eliminate the parent's disability.
Proof of parental incapacity is likely to be a combination of evidence concerning the parent's
behavior toward the child, an expert diagnosis and prognosis concerning the parent's condition,
and, where applicable, the parent's prior history of treatment.
The fact that a parent has any particular incapacity or disability is not a ground in itself
for termination of parental rights. The parental condition must make the parent unable to care
for the individual child who is the subject of the termination proceeding. Thus, a person may be
mentally ill or developmentally disabled but have a sufficient level of functioning to provide
proper care for the child. A parent might be capable of caring for one child but not another,
particularly if one child has a condition requiring special care. The name of the parent's
disability is not the crucial element in assessing parental capacity, but rather it is the parent's
actual behavior and ability to provide the necessary care, support, and guidance for the child.
(See Hardin & Lancour, op. cit., 37-40.)
If a parent's disability is, in itself, severe enough to sustain this ground, the agency
should not be required to make efforts to help the parent improve. For example, certain types of
serious and irreversible brain injuries might profoundly interfere with a parent's basic functions.
Occasionally, where a physical condition has rendered the parent permanently immobile, a
parent may be unable to care for a child.
More often, however, this ground applies when entities other than the child welfare
agency, such as mental health programs, have unsuccessftilly provided services to the parent in
the past. If there is evidence that other agencies or service providers have already made
substantial and appropriate efforts to help the parent, it may make no sense for the child welfare
agency to try. That is, if others have already done everything that the child welfare agency might
do and the parent remains unable to care for the child, there is no reason for the child welfare
agency to repeat their efforts. On the other hand, this ground should not apply, if the parent
stands a good chance of improving enough from further services to care for the child.
A difficult issue under this ground is how to take into account possible accommodations
to the parent's disability. It is important to expect government agencies to meet their legal
obligations to accommodate the disability, pursuant to the Americans with Disabilities Act and
other legislation. On the other hand, it is important to be realistic about what services really will
Guidelines for Public Policy and State Legislation Concerning Permanence for Children Page VI-22
be available to the parent. Neither the child welfare agency nor other entities are required to
provide helpers who will effectively take over the function of parent.
In evaluating the parent's disabilities, it is important to consider not only the parent's
capacity to meet the child's immediate needs, but also the parent's capacity to care for the child
as the child grows up. For example, a particular developmentally disabled parent may be
capable of caring for an infant but not able to supervise or meet the needs of an older child.
In some cases, although a parent lacks the capacity to care for a child, continuing parent-
child contacts will benefit the child. If continued parent-child contacts are needed despite the
parent's inability to care for the child, termination may not be in the child's best interests.
Instead, guardianship or some other permanent placement arrangement may be preferred. This
issue is not germane to the grounds for termination; it should be considered, however, in the
development of the permanency plan and in the best interest phase of the termination proceeding.
Most State grounds for termination of parental rights authorize courts to take into account
parents' capacity or incapacity to care for the child. However, many do not make it clear that, in
some cases, sufficient evidence of parental incapacity is enough to establish grounds for
termination. In some States, regardless of the degree of the parent's incapacity or the strength of
the evidence, it may be necessary for the child welfare agency to provide services to reunify the
family.
Ohio has enacted a statutory ground for termination of parental rights that is consistent
with this Guideline. Ohio law authorizes termination if it is in the best interest of the child and if
there is:
Chronic mental illness, chronic emotional illness, mental retardation, physical disability,
or chemical dependency of the parent that is so severe that it makes the parent unable to
provide an adequate permanent hom.e for the child at the present time and, as anticipated,
within one year after the court holds the hearing [to decide whether to terminate parental
rights].
Ohio Rev. Code Ann. §§2151.414(B)(1), 2151.414(E)(2) (1998).
This ground is appropriately narrow, given the difficulty of showing that timely parental
improvement is not possible. Practically speaking, it is seldom possible to prove that a parent
cannot improve unless there is a history of prior unsuccessful treatment or if the condition itself
is of a type generally understood to be untreatable. It is clear from the Ohio statutory scheme
that the above ground can stand alone as a ground for termination of parental rights, without
evidence of child welfare agency services to reunify the family. (M. Hardin & R. Lancour,
supra, at 38-39.)
Colorado has also enacted a statutory ground for termination of parental rights that is
consistent with this Guideline (See Guideline 20.). Colorado law authorizes termination if
...[T]he child is adjudicated dependent or neglected and the court finds that no
appropriate treatment plan can be devised to address the unfitness of the parent or
Guidelines for Public Policy and State Legislation Concerning Permanence for Children Page VI-23
parents. In making such a determination, the court shall find one of the following as the
basis for unfitness:
(I) Emotional illness, mental illness, or mental deficiency of the parent of such duration
or nature as to render the parent unlikely within a reasonable time to care for the ongoing
physical, mental, and emotional needs and conditions of the child.
Colo. Rev. Stat. §19-3-604(l)(b) (1998).
Note that the Colorado statute makes it clear that no treatment plan is available that can
remedy parental incapacity within a reasonable time. It also makes clear that the court is to focus
on the parent's ability to meet the needs of the child.
ADDITIONAL GROUNDS THAT STATES MAY CONSIDER
As States examine their termination of parental rights laws, new grounds are emerging
and being tested. This section addresses the emerging grounds. These proposed grounds are
controversial and require thorough debate.
19. Extended Imprisonment: We recommend that States consider whether or not to
authorize termination of parental rights based on the extended imprisonment of
parents.
Commentary
States should consider whether or not State law should authorize termination of parental
rights when a few specific conditions occur. First, a child has come under the jurisdiction of the
court based on abuse or neglect. Second, the parent will be imprisoned for a specified time. And
third, the parent-child relationship is seriously undermined due to the length of the
imprisonment. In addition, the court should take into consideration whether the parent made
provisions for care for the child during the parent's incarceration and the realistic possibility of
early release. (See Hardin & Lancour, op. cit., 61-65.)
The Expert Work Group did not reach agreement concerning the length of imprisonment
that should be sufficient to constitute grounds for termination of parental rights. However, it
should be noted that some members of the Expert Work Group thought there should be no
ground based on extended imprisonment.
Grounds for termination of parental rights should assure permanent homes to children of
parents who will be incarcerated for long periods of time. In determining the length of sentence
justifying termination, the ground should take into account the age of the child and the realistic
possibility of early release. As under all grounds, the State also must show that termination of
parental rights is in the best interests of the child. Thus; if a parent has arranged for a child to be
cared for by an appropriate relative who would serve as the child's permanent legal guardian
during the imprisonment, there should be no legal basis for termination. (See Chapter II, Options
for Legal Permanency.) In addition, where an older child or adolescent has a close and positive
relationship with the parent, and where this relationship may be maintained by visits during the
Guidelines for Public Policy and State Legislation Concerning Permanence for Children Page VI-24
period of imprisonment, termination may not be in the best interests of the child regardless of the
length of imprisonment.
On the other hand, if a parent has been imprisoned for a lengthy term and a small child
must enter foster care, termination of parental rights may well be in the child's best interests.
Termination based on lengthy imprisonment is a controversial ground in many States, because
legislatures are concerned about double punishment of parents. While it is a terrible penalty for a
parent to lose a child as well as personal freedom, the child's need for permanence should have
priority in termination of parental rights decisions.
Arizona has enacted a statutory ground for termination of parental rights that is consistent
with this Guideline. Arizona law authorizes termination if:
...[T]he parent is deprived of civil liberties due to the conviction of a felony ... if the
sentence of such parent is of such length that the child will be deprived of a normal home
for a period of years.
Ariz. Rev. Stat. Ann. §8-533(B)(4) (1998).
In addition to proof of the above ground, it must also be shown the termination is in the
best interests of the child. (Id) In addition, it does not specify that the court is to take into
account the nature of the parent-child relationship, whether the parent made provisions for care
for the child during the parent's incarceration, and the realistic possibility of early release.
Iowa has also enacted a statutory ground for termination of parental rights that is
consistent with this Guideline. Iowa law authorizes termination if both of the following have
occurred:
(1) The child has been adjudicated a child in need of assistance ... and custody has been
transferred from the child's parents for placement....
(2) ... [T]he parent has been imprisoned and it is unlikely that the parent will be released
from prison for a period of five or more years.
Iowa Code. Ann. §232.116(l)(h) (1998).
Unlike the Guideline, the Iowa ground does not specify that the court is to take into
account the nature of the parent-child relationship, whether the parent made provisions for care
for the child during the parent's incarceration, and the realistic possibility of early release.
Finally, Ohio has enacted statutory grounds for termination consistent with this
Guideline. Ohio law authorizes termination if it is in the best interest of the child, and the child
"cannot be placed with either of his parents within a reasonable time or should not be placed
with his parents." [Ohio Rev. Code Ann. §2151. 414(B)(1), 1998.] Among the grounds that can
establish that a child cannot be placed with parents are the following:
The parent is incarcerated at the time [termination of parental rights is first requested] and
will not be available to care for the child for at least eighteen months [after termination is
requested].
Guidelines for Public Policy and State Legislation Concerning Permanence for Children Page VI-25
The parent is repeatedly incarcerated and the repeated incarceration prevents the parent
from providing care for the child.
Id. §2 15 1.414(E)(7), (8).
Note that the first ground is similar to that of Iowa, except that the required length of
imprisonment is substantially shorter. Note also that the second ground does not mention the age
of the child, the number of incarcerations, or the length of any period of incarceration.
20. Drug or Alcohol Addiction and Failure of Prior Treatment: We recommend that
States should consider whether or not to authorize termination of parental rights
based on parents' drug or alcohol addiction and the failure of prior treatment.
Commentary
States should consider whether or not State law should authorize termination of parental
rights when the parent has drug or alcohol related impairments that are so severe that the parent
cannot care for the child and the parent has refused or failed to respond to repeated and
substantial treatment efforts. This ground is similar to those other grounds for termination that
are based in part on previous unsuccessful efforts to rehabilitate the parent. Under this type of
ground it should not be necessary to wait a year or provide new services in order to terminate
parental rights. (See Hardin & Lancour, op. cit., 40-44.)
Under this type of ground previous services to rehabilitate the parent should not
necessarily have been arranged or provided only by the child welfare agency. For example, it
may be that the prior treatment or offers of treatment were arranged through a criminal justice
agency or through a separate drug treatment organization. If the parent has repeatedly refused
offers of treatment, quit treatment, or repeatedly relapsed following treatment, and if the parent
abused or neglected the child while under the influence of drugs or alcohol following such
treatment efforts, it should not be necessary to provide additional treatment before seeking
termination of parental rights.
On the other hand, the fact that there have been some efforts at prior treatment does not
necessarily justify termination of parental rights. Whether termination is justified should depend
on what treatment was offered, how the parent responded, and whether there is any convincing
reason to believe the parent's future response will be different. For example, if the parent came
close to success in the past and there is reason to believe that the parent is now much more
motivated to succeed, continuing treatment services may be appropriate.
An important question is what should constitute prior treatment "failures." Success in
drug treatment should not be defined as total and permanent abstinence. In some cases, parents
suffer occasional relapses, but nevertheless present no danger to the child. Two good indicators
of failure of treatment for the purposes of a child welfare case may be: first, the child was
endangered or maltreated during the relapse and had to be removed from home; and second, that
the child probably would have been maltreated had the child been with the parent.
Guidelines for Public Policy and State Legislation Concerning Permanence for Children Page VI-26
Some members of the Expert Work Group thought that language should be added to the
Guideline requiring that "no services can help the parent care for the child." All agreed that if
there are available services that would permit the child's safe return home, it is not appropriate to
terminate parental rights because of an addiction to drugs or alcohol. However, the majority was
concerned that the suggested language would be read to require unrealistic services, such as 24-
hour respite care.
A minority of the Expert Work Group opposed any ground for the termination of parental
rights based on addiction and prior drug treatment. In their view, sometimes the removal of a
child from home gives parents the motivation to complete treatment although they failed in the
past. For this reason, they believe that new treatment should be offered after children enter foster
care for the first time, regardless of the results of prior treatment.
Oklahoma has enacted a statutory ground for termination of parental rights that is
consistent with this Guideline. Oklahoma law authorizes termination if
The parent of the child has a history of extensive, abusive, and chronic use of drugs or
alcohol and has resisted treatment for this problem during a three-year period
immediately prior to the filing of the petition which brought that child to the court's
attention.
Okla. Stat. Ann. Th. 10 §7006-l.l(A)(14) (1998), as amended by 1998 Okla.
Enr. H.B. 2826 §20.
Virginia has enacted a similar ground. It authorizes termination in cases where the
"neglect or abuse suffered by a child presented a serious and substantial threat to his life, health
or development ... and it is not reasonably likely that the condition which resuhed in such neglect
or abuse can be substantially corrected or eliminated so as to allow the child's safe return to his
parent or parents within a reasonable period of time." Under Virginia law, proof of the following
is prima facie evidence that the condition cannot be corrected within a reasonable time:
The parent or parents have habitually abused or are addicted to intoxicating liquors,
narcotics or other dangerous drugs to the extent that proper parental ability has been
seriously impaired and the parent, without good cause, has not responded to or followed
through with recommended and available treatment which could have improved the
capacity for adequate parental functioning.
Va. Code Ann. §16.1-283(B)(l)(b) (1998).
Iowa has enacted a termination ground that is consistent with this Guideline, except it
does not explicitly require that prior treatment be previously offered to the parent. Iowa law
requires that:
(1) The child has been adjudicated a child in need of assistance [citing Iowa law] and
custody has been transferred from the child's parents for placement pursuant to [citing
Iowa law].
(2) The parent has a severe, chronic substance abuse problem, and presents a danger to
self or others as evidenced by prior acts.
Guidelines for Public Policy and State Legislation Concerning Permanence for Children Page VI-27
(3) There is clear and convincing evidence that the parent's prognosis indicates that the
child will not be able to be returned to the custody of the parent within a reasonable
period of time considering the child's age and need for a permanent home.
Iowa Code. Ann. §232.1 16(l)(k) (1998).
21. Child's or Sibling's Removal, Return Home, and Subsequent Abuse or Neglect: We
recommend that States consider whether or not to authorize termination of parental
rights based on a child's or a sibling's removal from home, return home, and the
subsequent abuse or neglect of the child.
Commentary
States should consider whether or not State law should include a ground authorizing
termination of parental rights when the following sequence of events occurs: (a) a child or
sibling was abused or neglected; (b) an agency made diligent efforts to rehabilitate the family;
(c) the child or sibling was subsequently returned home by the agency; (d) the child who is the
subject of this proceeding was later abused or neglected and had to be removed from home; and
(e) the underlying causes of the episode of abuse or neglect following the child or sibling's return
were similar to the causes of the abuse or neglect occurring before the child was recently
removed from home. (See Hardin & Lancour, op. cit., 44-49.)
This ground is similar in some ways to the prior termination of parental rights ground,
Guideline 1 7. Under both grounds, it is not necessary to first wait a year or provide new services
to preserve the family before terminating parental rights. The premise of both grounds is that the
State can take into account prior history of parental abuse or neglect and prior agency efforts to
help the parents. Both grounds require that the agency tried to help the family following an
original episode of abuse or neglect, the parents abused or neglected again after receiving such
help, and both episodes of abuse or neglect were similar.
This ground applies when there is no prior termination of parental rights concerning a
sibling. For example, this ground would allow termination under the following circumstances: a
child's sibling was physically abused and placed in foster care, comprehensive rehabilitative
services were provided to the parents, and the sibling was returned home. One year after the
sibling's return home, the child was physically abused under similar circumstances and both
children had to be placed into foster care.
Note that, under this ground, if the new incident of abuse or neglect is not similar to the
original event, there is no basis for termination. If the causes of the child's original and
subsequent placement are different, then different services might help remedy the more recent
problem.
Arizona has enacted a ground for termination of parental rights that is generally
consistent with this Guideline. Arizona law authorizes termination if all of the following are
true:
(a) The child was cared for in an out-of-home placement pursuant to court order.
Guidelines for Public Policy and State Legislation Concerning Permanence for Children Page VI-28
(b) The agency responsible for the care of the child made diligent efforts to provide
appropriate reunification services.
(c) The child, pursuant to court order, was returned to the legal custody of the parent from
whom the child had been removed.
(d) Within eighteen months after the child was returned, pursuant to court order, the child
was removed from that parent's legal custody, is being cared for in an out-of-home
placement under the supervision of the juvenile court, the division or a licensed child
welfare agency and the parent is currently unable to discharge parental responsibilities.
Ariz. Stat. §8-533(B)(10), as amended by Ariz. Laws 1998, ch. 276, §13.
Note that the Arizona ground does not include cases where the most recent removal was
more than 1 8 months after the child was returned home. Note also that the Arizona law does not
require that the causes of the original and more recent abuse or neglect be similar. Finally,
Arizona law provides that, in applying this ground, the court is to "consider the availability of
reunification services to the parent and the participation of the parent in these services." This
ground probably requires that appropriate reunification services were available after the original
removal of the child.
California law authorizes termination of parental rights without prior services to reunify
the family based on the following:
[T]he minor or a sibling of the minor had been previously adjudicated a dependant
pursuant to [citation to California law] as a result of physical or sexual abuse, that
following that adjudication the minor had been removed fi"om the custody of his or her
parent or guardian puirsuant to [citation to California law] that the minor has been
returned to the custody of the parent or guardian fi-om whom the minor had been taken
originally, and that the minor is being removed pursuant to [citation to California law],
due to additional physical or sexual abuse.
Cal. Welf & Inst. Code §36 1.5(b)(3), (9), as amended by 1997 Cal. Laws, Ch. 793, §17.
Note that the California ground is silent on the provision of services to rehabilitate the
family and on whether the different incidents of abuse must be similar. On the other hand, the
California law applies to abuse but not neglect cases. Under California law, in addition to
making the factual findings that reunification services will not benefit the child the court must, at
a subsequent hearing, find that termination is in the best interests of the child. (For a complete
explanation of the California statutory scheme, see M. Hardin & R. Lancour, supra, at 50-58.)
GUIDELINES FOR DETERMINING WHETHER TERMINATION WILL BENEFIT
THE CHILD
Another significant factor to take into account is that the termination of parental rights
also severs a child's ties to siblings and extended family members. If and/or when this is contrary
to the child's best interests, it is important that other permanency options be explored. (See
Chapter II: Options for Legal Permanency.)
Guidelines for Public Policy and State Legislation Concerning Permanence for Children Page VI-29
22. Termination Will Benefit Child: If grounds for termination are found, we
recommend that State law require the petitioner to prove, by a preponderance of
evidence, that termination of parental rights will affirmatively benefit the child.
Commentary
Where grounds for the termination of parental rights exist, State law should also require
proof that termination will affirmatively benefit the child. Termination should be considered
beneficial if the child will benefit from adoption or, in unusual cases, where termination is
needed because any future contacts between parent and child will be detrimental.
23. Appropriateness of Legal Options Not Requiring Termination: In evaluating whether
termination of parental rights is in the child's best interests, we recommend that
State law authorize the judge to consider the appropriateness of legal options not
requiring termination.
Commentary
While adoption is preferred as the most permanent and legally secure option for children
unable to return home, there are cases in which children are better off without parental rights
being terminated. As part of the decision whether parental rights should be terminated, the
parties should be able to argue that other arrangements would be better for the child. (See
Chapter II, Options for Legal Permanency.) For example, in the cases of developmentally
disabled parents who know the new parents and young parents whose relative will care for the
child, it often is not necessary to terminate parental rights involuntarily.
24. Termination Before Identifying Adoptive Home: We recommend that State law
specify that the court should not decline to terminate parental rights because an
adoptive home has not yet been identified or arranged or because the child cannot
readily be placed for adoption.
Commentary
Courts should not decline to terminate parental rights because it is not certain that a child
will be adopted. For example, courts and agencies should not delay or block the termination of
parental rights because an adoptive home has not yet been identified, or based on a view that the
agency will not be able to find adoptive parents for broad categories of children. Rather, they
should be willing to terminate parental rights if the agency has a realistic strategy to place the
child for adoption. On the other hand, many children unfortunately remain unplaced after
termination. If a defense attorney can show that the possibility of adoption is remote and that the
agency has no plausible strategy to secure an adoptive home for the child, the court should take
this into account in evaluating whether termination of parental rights will benefit the child.
After termination and until the child achieves a legally permanent placement such as
adoption or permanent guardianship, the court should retain jurisdiction, periodically review the
Guidelines for Public Policy and State Legislation Concerning Permanence for Children Page VI-30
case, and make sure that all appropriate steps are being taken to place the child. (See Chapter
IV, Court Process, Guidelines 39 and 40.)
25. Termination When Parent Contacts Are Harmful: We recommend that State law
specify that the court may terminate parental rights when adoption is not the plan
for the child only if any continued parent-child contacts will harm the child.
Commentary
Only in rare cases is termination of parental rights appropriate when adoption is not
contemplated. This might be the case, for example, when the child is terrified of the parent,
parent-child visits are traumatic, and the only way to end parent-child contacts effectively and
decisively is to terminate parental rights.
Guidelines for Public Policy and Stale Legislation Concerning Permanence for Children Page VI-3 1
Publications
Bailey, C. Adoption Roundtable: A Summary of Judicial Concerns About Permanent Placement
of Children in the United States and the United Kingdom. National Council of Juvenile and
Family Court Judges, October 1998.
Gelles, R.J. The Book of David: How Preserving Families Can Cost. Children 's Lives. New
York, NY: Basic Books, 1996.
Guggenheim, M. "The Effects of Trends to Accelerate the Termination of Parental Rights of
Children in Foster Care: An Empirical Analysis in Two States." Family Law Quarterly 29: 121,
122-25(1995).
Hardin, M., and Lancour, R. Early Termination of Parental Rights: Developing Appropriate
Statutory Grounds. Washington, DC: ABA Center on Children and the Law, 1996.
Herring, D.J. "Inclusion of the Reasonable Efforts Requirement in Termination of Parental
Rights Statutes: Punishing the Child for the Failures of the State Child Welfare System."
University of Pittsburgh Law Review 54(\y. 139-209 (Fall 1992).
National Conference of State Legislatures. Annual State Legislative Summary: Children, Youth,
and Family Issues. Denver, CO: National Conference of State Legislatures, December 1997.
National Council of Juvenile and Family Court Judges. Child Abuse and Neglect Cases: A
National Analysis of State Statutes. Reno, NV: Permanency Planning For Children Project,
National Council of Juvenile and Family Court Judges, 1997.
North American Council on Adoptable Children. Shortening Children 's Stays: Innovative
Permanency Planning Programs. St. Paul, MN: North American Council on Adoptable Children
with support from the Annie E. Casey Foundation, April 1997.
Ratterman, D. "Changing Agency Procedures." In: Children Can 't Wait: Reducing Delays for
Children in Foster Care. Edited by Cahn, K. and Johnson, P. Washington, DC: Child Welfare
League of America, Inc., 1993.
Ratterman, D. Termination Barriers: Speeding Adoption in New York State Through Reducing
Delays in Termination of Parental Rights Cases. Final Report. Washington, DC: ABA Center
on Children and the Law, 1991.
U.S. Department of Health and Human Services. Child Abuse and Neglect State Statute Series,
1997. Washington, DC: U.S. Department of Health and Human Services. 1997.
Wolff, J., and Grimm, W. "Representing Parents in Termination of Parental Rights
Proceedings." Clearinghouse Review 23: 849 (November 1989).
Guidelines for Public Policy and State Legislation Concerning Permanence for Children Page VI-32
CHAPTER VII: STANDARDS FOR LEGAL REPRESENTATION
OF CHILDREN, PARENTS AND THE CHILD WELFARE
AGENCY
INTRODUCTION
Children's interests are not well served unless all parties have good legal representation.
Courts face difficult decisions about how best to protect children and judges need to be confident
that they are reaching the best-informed decision about a child's future. "Given that attorneys
and other advocates often determine what information a judge is presented with, it is vital that all
parties in child abuse and neglect cases have adequate access to competent representation so that
judges can make informed decisions." (NCJFCJ Child Abuse and Neglect Cases: Representation
as a Critical Component of Effective Practice, 1998, p. 3.) These Guidelines are meant to clarify
what is good practice in child welfare legal representation.
Lawyers become involved in a child welfare case whenever legal proceedings are
contemplated or actually initiated. They can greatly influence a case, for good or ill, depending
on their level of involvement, their training and experience, and the legal standards governing
their conduct. Some States have established formal standards for lawyers representing children,
and the American Bar Association House of Delegates adopted Standards of Practice for
Lawyers Who Represent Children in Abuse and Neglect Cases (February 1996). The ABA
Standards, however, are merely advisory and have no legal authority in individual States. To our
knowledge, there are no national standards at all for legal representation of the child welfare
agency or of parents accused of child maltreatment.
These Guidelines recommend that legal counsel be available to the parties very early in
the State intervention process, but no later than the point at which legal proceedings are initiated.
Unfortunately, role ambiguity and lack of clear practice standards present problems for lawyers
representing all parties (children, parents, and agencies) and result in reducing the overall quality
of legal representation. Standards to guide legal representation of children, child welfare
agencies, and parents accused of child maltreatment are key to improving professional practices
and assuring timely decisions on permanent placement of children.
The deficiencies in legal representation in child welfare cases are certainly not universal;
some jurisdictions generally achieve high quality attorney performance in these cases. In many
courts, however, legal counsel for children, parents, and agencies does not achieve a minimal
threshold of performance, much less the higher standard of legal representation that would be
optimal. Yet, many practitioners, advocates, and others are concerned about the poor legal
representation in child welfare cases nationally. In a survey by the National Council of Juvenile
and Family Court Judges, the vast majority of court improvement specialists (84 percent)
identified legal representation as a problematic aspect of case processing in child abuse and
neglect cases. {Child Abuse and Neglect Cases: Representation as a Critical Component of
Effective Practice by Dobbin, Gatowski and Johns, NCJFCJ, 1998). Of 25 Court Improvement
Project self-assessments, most identified legal representation or the need for improved legal
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page VII- 1
training as an item for reform. (Summaries of Twenty-Five State Court Improvement Assessment
Reports, Technical Assistance Bulletin, Permanency Planning for Children Project, National
Council of Juvenile and Family Court Judges, p. 18, March 1998.) "Lack of experience, skills,
training, and adequate compensation were cited as issues for parents' attorneys and children's
representatives. Frequent rotation and high caseloads were problematic for many prosecutors
and agency attorneys. Reports noted a lack of statutory or court rule imposed minimum
requirements and qualifications for court-appointed attorneys." (Id at 18.)
Poor quality legal representation results from a variety of factors ranging from the
pressure of high caseloads to poor customs and low expectations of representation in the
jurisdiction. The old reputation of juvenile and family courts as a lesser "kiddie court" persists in
some places, despite the increased sophistication and complexity of both the law and the
underlying interdisciplinary perspective required to handle these cases effectively. Child welfare
is a unique and highly specialized area of practice, yet many advocates have not received training
in handling such cases. In many States, neither ethical requirements nor practice standards for
attorneys in child abuse and neglect cases have been developed.
These Guidelines devote more attention to lawyers for children, as measured by pages
and amount of text, yet the amount of text devoted to each role does not reflect their relative
importance. All of the lawyer roles are important for the legal process to work fairly and
efficiently for children and their families. However, attorneys for the agency and for parents can
more easily draw upon existing law and tradition in their representation and generally have a
clearly competent client who can identify the goals of the litigation. The role of the child's
attorney, on the other hand, presents unique complications that these Guidelines attempt to
address.
GUIDELINES AND COMMENTARY
GENERAL GUIDELINES
1. Standards of Practice: We recommend that States require a set of standards of
practice for lawyers in child welfare proceedings. Standards can be implemented by
court rule, or by devolution to the State bar association or regulatory agency.
Sanctions and penalties should be applied for non-adherence to standards.
Commentary
State legislation could commit the State to a set of standards of practice for lawyers in
child welfare proceedings either by direct legislative provisions or by delegation to the State bar
association, court system, or regulatory agency. The responsible organization should be required
to report back to the State to assure adherence to standards. Sanctions and penalties would be
applied for non-adherence to standards. Gross or repeated violations of the standards should be
per se ethical violations. State standards are currently in place in several States, for example,
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page VII-2
California (Calif. Rules of Court, Rule 1438); Colorado (Supreme Court Directive 96-02);
Michigan (Mich. Compiled Laws §712A.17c, as Amended, December 1998); Kansas (Kansas
Supreme Court Administrative Order 100, April 19, 1995); West Virginia (Supreme Court Order
in In Re Jeffrey R.L., 435 S.E. 2d 162, 178-179, 1993.) (For a thorough compilation of laws
governing representation of children in child protection proceedings, see Peters, Representing
Children in Child Protective Proceedings: Ethical and Practical Dimensions, Lexis Law
Publishing, Charlottesville, Virginia, 1997, Appendix B, pp. 255-479.)
2. Training: We recommend that States require training before a lawyer accepts
assignment as attorney for child, parent or agency. States should establish training
programs and ensure their accessibility to child welfare lawyers.
Commentary
States should establish training and assure its accessibility to child welfare lawyers. A
certain basic level of knowledge and skills is needed for this type of work. Optimally training
should be interdisciplinary. It should include, but not be limited to, applicable statutory codes,
case law and court procedure, the dynamics of child abuse and neglect, child development,
treatment issues, communication, childhood language development, and the impact of separation
and long-term consequences to a child of being in temporary care.
Training would also include techniques of negotiation, problem solving, mediation,
multidisciplinary collaboration, and specialized litigation skills related to courts that have
jurisdiction over these cases. Training should also focus on special skills required in child
protection, such as how to prepare a child witness and collaboration with expert witnesses.
Lawyers need to know when to seek and how to evaluate and use data in specialized cases, in
particular data from psychological evaluations. Optimally, cross training of attorneys,
particularly agency attorneys, would occur with social workers so both understand one another's
responsibilities and perspectives. There may be some benefit for the CAS A and the child's
attorney to receive some joint training.
Lawyers should understand the reality of overrepresentation of children of color in the
foster care system and be sensitive to the strengths and challenges that may be reflected among
diverse cultures, races, and ethnic backgrounds. Training should enhance their understanding for
working with different groups of clients who are known to the child welfare and court systems.
This knowledge will affect the attorney's ability to successfully represent the client. A client's
cultural context includes, but means more than, race and ethnicity. Other areas that must be
considered in each case are economic status, literacy, language, education, immigration status,
mental and physical disabilities, gender, age, and sexual orientation. A lawyer who has lived in a
homogeneous environment — whether racial, ethnic, religious or economic — may find it takes
time, effort, and empathy to understand how and why people who are not like the lawyer respond
to family issues differently. (See Howze, Making Differences Work: Cultural Context in Abuse
and Neglect Practices for Judges and Attorneys, ABA Center on Children and the Law, 1996, p.
7.) Attorneys of all backgrounds can and must learn how such cultural differences can affect a
person's view of his or her family, the State efforts to intervene, and the legal process.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page VII-3
Before receiving any assignment, lawyers should document their relevant training, which
can be provided by local, State, and national bars, and professional associations. Continuing
recertification is also recommended for all representatives. To evaluate the effectiveness of the
training, the entire system should be analyzed to determine if it is producing qualified
representatives. Training programs should have both process and outcome evaluations.
Training programs and court appointments should only be available to attorneys whose
background checks show they have no criminal history of violent crimes or crimes against
children.
3. Resources. We recommend that States assure that sufflcient resources are available
for lawyers to meet the State standards of practice and that the resources should:
a. provide reasonable compensation for child welfare attorneys;
b. require development of reasonable caseload standards for attorneys based on the
number of hours required per case and then fund positions in accordance with
those caseloads;
c. provide legal counsel through specialty offices or agencies so there is ongoing
supervision and support for representatives;
d. assure a structure that guarantees supervision and professional support for
attorneys, including pro bono attorneys and attorneys for the child, whether
they work in an office or independently;
e. assure that suitable and adequate working conditions are maintained, including
access to desks, telephones, copying equipment, etc.;
f. provide private space to meet with clients;
g. ensure continuity of representation for all parties.
Commentary
Primary causes of inadequate legal representation of the parties in child welfare cases are
low compensation and excessive caseloads. Reasonable compensation of attorneys for this
important work is essential. Rather than a flat per case fee, compensate lawyers for time spent.
This will help to increase their level of involvement in the case and should help improve the
image of attorneys who are engaged in this type of work. When attorneys are paid a set fee for
complicated and demanding cases, they cope either by providing less service than the child-client
requires or by providing representation on a pro bono or minimum wage basis. Neither of these
responses is appropriate.
Rates should also reflect the level of seniority arid level of experience of the attorneys. In
some offices, lawyers handling child welfare cases receive lower pay than other attorneys. This
is inappropriate. Compensation of attorneys handling children's cases should be on a par with
other lawyers in the office handling legal matters of similar demand and complexity. The need
for improved compensation is not for the purpose of benefiting the attorney, but rather to ensure
that the child receives the intense and expert legal services required.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page VII-4
State law should set standards for caseloads and caseloads should be reevaluated
periodically. No standards or training or professional devotion to duty will produce optimal
results if caseloads are too high. Depending on the level of support, the complexity of the case,
and whether or not a lawyer's full-time interest is in child welfare cases, the caseload cap for a
staff attorney should be set at 100 children. (See ABA Abuse and Neglect Standards §§L-1, L-2.)
States could enforce caseload standards through full public reporting of caseloads throughout the
State, working with localities to bring their caseloads to acceptable levels, or establishing fines
for the locality that exceeds caseload limits. Limits could also be enforced through court action,
including holding local officials and individual practitioners in contempt.
Rapid turnover of lawyers characterizes many courts as attorneys and cases are
transferred fi-om one unit to another in a legal office. Instead, continuity of representation by all
advocates throughout the judicial process is essential. In particular, advocates for the child
should continue their involvement with the child until the permanent placement is completed.
Interpreters should be available to a lawyer and his or her client as necessary.
Those hiring or assigning lawyers should make every effort to recruit, hire and promote
attorneys with special commitment and, in some cases, special preparation for child welfare legal
work. There is a growing number of lawyers interested in specializing in child law who could
help build effective legal representation programs. Since children of color are seriously
overrepresented in the foster care population, recruitment of minority lawyers to serve this
population is especially important. In addition to a paid professional work force, some
communities have established supplemental pro bono attorney programs where volunteer
attorneys, trained and supervised by specialists, provide legal representation for children. (An
excellent model of such a pro bono program is the Philadelphia Support Center for Child
Advocates. For assistance in setting up such a pro bono attorney program contact ABA Section
on Lifigation Task Force on Children at 215-925-1913.)
GUIDELINES FOR REPRESENTING BIOLOGICAL PARENTS (AND LEGAL
GUARDIANS)
4. Parents Need Counsel in All Court Proceedings: We recommend that States
guarantee that counsel represent biological parents (or legal guardians) at all court
hearings, including at the preliminary protective proceeding. Such representation
should be provided at government expense when the parent or guardian is indigent.
Commentary
Because of the critical importance of the very first court appearance, it is essential that
parents have competent legal representation at the preliminary protective proceeding. Competent
representation would probably mean providing the parents an opportunity to meet with their
counsel at least an hour before the preliminary hearing. If, after entering orders necessary for the
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page VII-5
immediate protection of the child, the court needs to adjourn the preliminary proceeding for
appearance of counsel, the delay should be limited to a day or two.
In representing parents, it is important for legal representatives to remain involved in the
case throughout the process. They should also include parents at all stages, and provide a
thorough explanation of the process (for example, give them a set of definitions and an outline of
the court process so they understand what will happen in court). In addition, when there is a
conflict of interest, separate counsel should be appointed for each parent because one attorney
cannot represent the interests of both parents. This is true in many juvenile dependency matters,
abuse or domestic violence cases, and in other situations when parents are not living together or
have distinctly different perspectives.
5. Counsel in Voluntary Placements: We recommend that biological parents (or legal
guardians) have legal counsel in judicial proceedings even when the out of home
placement originates as a voluntary placement.
Commentary
The underlying goal of this Guideline is to assure that parents do not give up temporary
custody of their children without full knowledge and understanding of the legal consequences of
their action. Parents must fully understand the legal implications of a voluntary placement, even
when that placement is arranged between the agency and the parent at the parent's request and
without court involvement. Where interpreters are required to adequately communicate the legal
implications to the parent, they should be provided. Especially in the out-of-court setting, the
agency workers should fully disclose the terms of the placement and the inherent legal risks to
the child and parent. A truly voluntary and informed consent is essential. On the other hand,
voluntary placement should not be discouraged when appropriate. Agencies could consider
employing a trained advisor, who is independent of the child welfare caseworker, to counsel and
fully inform the parent of the consequences of their voluntary temporary placement. This
Guideline does not recommend that parents always obtain legal counsel before accepting agency
services voluntarily or before placing their children temporarily in voluntary foster care, as long
as an informed consent procedure is in place.
At the point that a placement comes to court for authorization or review, however, the
parent should have legal counsel because of the serious consequences to the parent and child that
could flow fi-om the judicial proceedings. A waiver of the right to counsel should be exceptional.
The right to counsel may be waived only if the waiver is genuinely firee fi-om duress and fially
informed.
6. Counsel at Voluntary Relinquishment: We recommend that no biological parent be
permitted to relinquish parental rights, even on a voluntary basis, without the
benefit of counsel.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page VII-6
Commentary
Parents may not fully understand the consequences of relinquishing their parental rights.
Given the fundamental importance of this act, parents should always have a right to legal counsel
injudicial proceedings and such counsel should be familiar with any cross-cultural issues and
have access to interpreters if needed. A waiver of the right to counsel should be exceptional. The
right may be waived only if the waiver is genuinely free from duress and fully informed.
Lawyers are important for parents at relinquishment; yet it is not in the interest of lawyers
for other parties to advise parents they can be represented. A well-trained lawyer representing
these parents might uncover, for example, that the underlying issue is not poor parenting but is,
instead, inadequate housing, domestic abuse, or some other problem that warrants a different
response. The underlying goal of this Guideline is to assure that parents do not give up custody
of their children without full knowledge and understanding of the legal consequences of their
action. Parents should receive personal counseling, including information as to other options that
may be available to them, but should not be discouraged from voluntary relinquishment if that is
indeed their wish. (See discussion of Relinquishment Counseling in Chapter V, Non- Adversarial
Case Resolution, and Voluntary Relinquishment in Chapter VI, Termination of Parental Rights.)
7. Zealous and Diligent Representation: We recommend that an attorney representing a
parent be legally and ethically bound to exercise diligence, zealousness, and
thoroughness at each stage of the child protection process.
Commentary
The attorney for the parents is charged with representing the interests of his or her clients
zealously within the bounds of the law. (ABA Model Rules of Professional Responsibility, Rule
1.2 "A lawyer shall seek the lawful objectives of a client through reasonably available means
permitted by law and these rules.") As is the case with most legal disputes, the attorney for the
parents should, in the first instance, seek to resolve any dispute through negotiation or other form
of dispute resolution and avoid the contested adversarial solution if at all possible. Advocacy for
the parents usually takes the form of minimizing the effects of State intervention on the family.
It may include diplomatic attempts to persuade the agency to withdraw the petitions, in-court
advocacy for dismissal, insistence that the charges brought by the State be legally proven in
court, and negotiation for dispositions that are most acceptable to the parents.
Determining the best interest of the child is the initial task of the caseworkers and the
ultimate question for the court. But, it is not the duty of the parent's attorney to represent or
pursue the best interests of the child. (But the lawyer's loyalty and obligation runs first,
foremost, and completely to the parent client.) The parent's attorney may frame his or her client's
goals in terms of what is best for the child and is often correct in doing so. In order for the
process to achieve the goal of best interests of the child, all perspectives must be fully and
forcefully presented to the court.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page VII-7
A danger exists in child protection cases that personal rights of parents and children will
be infringed in the well-intentioned zeal to help children and parents. Even before an attorney is
appointed to represent the parents, government intervention in the family may have been initiated
that has not been reviewed by any court or magistrate. The goals of the child protection system
do not alter the need to recognize and respect the personal integrity and autonomy of parents.
Protective State intentions do not justify any relaxation of legal safeguards or procedural
protections for parents or children.
In the absence of a set of standards governing lawyer representation of parents, it is safe
to say, based on the ABA Model Rules of Professional Responsibility and general practice, that
prior to each hearing in the proceedings the attorney must, among other things:
a. discuss the matter with the client sufficiently in advance to have time to
investigate and prepare the case;
b. conduct a thorough, independent investigation;
c. conduct formal discovery, if needed;
d. interview and subpoena necessary witnesses in advance of the hearing;
e. conduct any needed research of legal issues pertinent to the case;
f pursue other legal actions, such as personal protection orders, divorce, child
custody, or guardianship that might eliminate the need for the child protection
legal process;
g. cooperate with mediation and other alternative forms of dispute resolution when it
is in the interests of the client to do so;
h. help parents understand deadlines and the possibility that they could lose their
parental rights;
i. help parents access services, e.g., housing, mental health treatment, and drug and
alcohol treatment;
j. counsel clients on the importance of close communication with their child, the
child welfare agency, and the court; and
k. continue with the case until specifically relieved.
GUIDELINES FOR AGENCY REPRESENTATION
8. Agency is the Client: We recommend that States define the agency attorney role as
the legal representative of the agency.
Commentary
The legal representatives of the agency should be in a traditional attorney-client
relationship with the agency and should be involved in the preparation of pleadings, affidavits,
motions, and other legal documents. Consistent with the ABA Model Rules of Professional
Conduct, 1.2, The lawyer shall seek the lawful objectives of a client through reasonably
available means permitted by law and these rules." When invoking the court system, the child
protection worker and agency need the services of a lawyer whom they can trust and who will
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page ViI-8
advocate for their point of view. Navigating the complex intricacies of the law and court process
requires competent legal counsel. Child welfare agencies have great difficulty managing the
legal aspects of children's cases when they are poorly represented or not represented at all in the
traditional sense in these important court proceedings.
Currently there is great variation in the role of the attorney who appears in court with or
for the child welfare agency. In some States, the attorney is expected to represent the position of
the agency — the position recommended in these Guidelines. In other States, however,
particularly where county or district attorneys bring cases on behalf of the State, the attorney may
exercise independent discretion on whether to bring cases and what settlements to accept. There
are serious consequences in a system where the attorney feels free to take whatever position he or
she personally feels is correct. The agency and the agency caseworker can be left without legal
representation for their professional recommendations in court proceedings that are increasingly
complex and where a great deal is at stake.
In some States, there is confusion concerning whether attorneys are expected to represent
the agency. In still other States, different attorneys may represent the State at different stages of
the proceedings. In some States, such as Illinois, different State or local attorneys may appear in
court at the same time, such as the district attorney for the State and the attorney general
representing the legal position of the agency. We do not recommend this position. Similarly,
some States have used systems of dual representation in which the same lawyer represented both
the child and the agency. Courts have ruled, and we also recommend, against dual
representation.
Agency lawyers' training must be broad and interdisciplinary. Lawyers who represent
banks learn the banking business very well. Lawyers who specialize in labor issues become well
acquainted with labor unions and labor organizing and the history of the labor movement in
America. Similarly, lawyers who represent the child welfare agency must get to know both the
social work profession and the child welfare system. The child welfare lawyer must understand
and appreciate the emphasis on nonjudicial, yet fair, handling of child protection cases. In
addition to traditional legal skills, acquiring a solid background in juvenile court proceedings and
family law and philosophy is essential for the child welfare attorney. The attorney must be
familiar with child development, child psychology, how children learn, family dynamics, and the
psychological, sociological and political factors that bring families and children into the child
welfare legal system. Training should acquaint lawyers with the reality of overrepresentation of
children of color in the foster care system and should senshize them to the strengths that may be
presented by diversity of culture, race and ethnicity. The attorney should comprehend and
respect the functions, the experience, and the limitations of caseworkers and other behavioral
scientists. The foster care system — its limitations and strengths, its advantages and
disadvantages, the benefits and risks to children — must also be carefully studied. Concepts of
family preservation, family reunification, and permanency planning should become very familiar
to the agency lawyer.
The agency interests may not be monolithic and may require some internal conflict
resolution among the worker, supervisor, and others within the agency. The attorney for an
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page VII-9
agency may have to respond to the caseworker(s), the agency as a whole, and the local
government. The attorney may even have to reconcile competing views between the public
agency and the private agency under contract to provide services to a particular child and family.
Each of these may have slightly different interests. For example, while a caseworker might pose
a creative solution to a problem, the agency director or commissioner may perceive this solution
to be politically or financially impractical. The lawyer and the agency personnel may not share
all points of view and judgments about goals and strategy, but such differences are certainly not
unusual between lawyer and client and are rather common in both personal and corporate
practice. Lawyers representing groups or corporations resolve similar conflicts every day relying
on existing ethical rules. The lawyer's obligation is to represent the interests of the agency once
that position is authoritatively determined.
Although the attorney is representing the agency, the lawyer should not be at every
meeting between the caseworker and supervisor or deeply involved in every professional social
work judgement. The attorney would be more efficient and effective doing legal work while
freeing the caseworker to concentrate on the social work aspects of the case. In the long run,
competent representation of the agency could lead to a more efficient and effective use of
resources.
The agency attorney's role demands well-developed traditional legal skills. In addition,
however, the attorney must know the "business" of his or her clients very well. Ultimately, a
successful intervention in a family requires close collegial cooperation among the lawyer, the
child protection agency, and the psychiatric, psychological, and medical consuhants to the
agency. (See Herring, Legal Representation for the State Child Welfare Agency in Civil Child
Protecfion Proceedings: A Comparative Study, 24 Toledo Law Review 604, Spring 1993.)
9. Early Involvement: We recommend that States ensure that the attorney for the
agency becomes involved at a sufficiently early point to advise and assist the agency
throughout the process.
Commentary
Guidelines should define the lawyer's role partly as a counselor who helps to prevent
problems. Agency counsel should be involved from the very beginning of each case so the
attorney can advise and assist the agency throughout the legal process. The lawyer should
participate in multidisciplinary team staffing and in other case related meetings, particularly if
other parties will be represented. Agency counsel should help monitor compliance with the law
and build a record for permanency options, including TPR. Agencies need counsel to help them
determine the best course of action. Early involvement of lawyers can facilitate the process and
assure that the agency is building a complete record for the desired legal result in the case,
whether it is return home, a relative placement, or termination of parental rights and adoption.
Agency attorneys must appreciate the importance of cooperative and nonadversarial resolution of
cases whenever appropriate and possible and pursue negotiated or mediated settlements
whenever possible. The lawyer should be involved before the decision is made to seek
termination of parental rights.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page VII-10
Lawyers for agencies should do what lawyers traditionally do for government or
corporate clients — ensure cases are reviewed as often as the law requires, that services are
offered as required under law, and that the written record reflects the agency efforts and plans.
The attorney should be available for non-crisis consultation and advice, including providing legal
training for the caseworkers. Attorneys representing agencies should feel that, in each case, they
are responsible for helping the agency reach its goal of achieving a timely resolution and
permanent home for the child. Agency attorneys should be evaluated, in part, by their ability to
obtain timely decisions from the courts.
Agency attorneys, as part of their responsibility to achieve timely case resolution, should
(a) combat all avoidable delays in the court process and (b) help the agency understand how its
actions might cause legal system delays. In addition, agency attorneys need to carefully monitor
the progress of each case to identify possible problems and barriers which could cause legal
delays. This includes periodically reviewing their files and talking to caseworkers even when no
court hearings are scheduled. All of this, of course, requires reasonable caseloads which allow
attorneys to do far more than merely to appear in court.
10. In-court Representation: We recommend that agency caseworkers have legal
representation whenever they appear in court.
Commentary
A major reason for having guidelines for legal representation is to ensure that the
caseworker observations and recommendations are fully presented and supported in court. A
lawyer can also protect caseworkers from legal errors or from unfair criticism. In keeping with
the obligation to support and assist the caseworker, the lawyer can advise the worker about legal
standards, expectations of the court and pitfalls. The purpose of this advice is not to dictate the
case direction for the caseworker, but rather to talk through the options and recommend a course
of action. Under this Guideline the lawyer continues to serve as the attorney for the agency, not
as attorney for the individual caseworker.
GUIDELINES FOR REPRESENTING CHILDREN
IL Zealous Attorney Representation for Children: We recommend that States guarantee
that all children who are subjects of child protection court proceedings be
represented by an independent attorney at all stages and at all hearings in the child
protection court process. The attorney owes the same duties of competent
representation and zealous advocacy to the child as are due an adult client.
Commentary
These Guidelines endorse the ABA Standards of Practice for Lawyers Who Represent
Children in Abuse and Neglect Cases when it provides that "All children subject to court
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page VII- 1 1
proceedings involving allegations of child abuse and neglect should have legal representation as
long as the court's jurisdiction continues." (See ABA Standards, Preface.) The court should
appoint a lavvyer (and other representatives, if indicated) in time to competently represent the
child at the first court hearing (including an emergency hearing).
The Guidelines address the duties of the advocate separately from the question of who
determines the goals and objectives of the child advocate. No matter whether the advocate
represents the child's best interests as determined by the advocate or assumes a client
directed/champion role as recommended by the ABA Standards, these Guidelines expect a
vigorous and active participation of the child's lawyer. (See Guidelines 15A and 15B below for
a discussion of how the goals of the advocate are to be determined.)
As a condition for receiving Federal funds, Federal law requires State law to provide that
a guardian ad litem will be appointed to represent the child in every case involving an abused or
neglected child that results in a judicial proceeding. [Child Abuse Prevention and Treatment Act,
(CAPTA), 42 use 5106a(b)(A)(ix).] CAPTA permits the guardian ad litem representative of
the child to be an attorney or a court appointed special advocate, or both. It also requires the
guardian ad litem to obtain, first-hand, a clear understanding of the situation and needs of the
child and make recommendations to the court concerning the interests of the child. These
Guidelines go further than the Federal law requirement and recommend that attorneys be
appointed to represent a child in every child protection case. Volunteer child advocates, i.e.,
Court Appointed Special Advocates (CAS As), are very positive and helpful advocates for the
child's best interests, and these Guidelines recommend the expansion of CASA programs into
every jurisdiction.
A survey by the National Council of Juvenile and Family Court Judges determined that
40 States appoint counsel for children in child abuse and neglect cases. In 30 States an
"attorney-guardian-ad-litem" is typically appointed who serves a dual function of representing
both the best interests and the wishes of the child. In the ten other States that appoint counsel for
a child, a guardian ad litem is appointed in addition to the attorney so that the attorneys perform
the single role of representing the child (i.e., the child's wishes). In ten States the NCJFCJ
reported that an attorney is usually not appointed for the child but in nine of those States a non-
attorney guardian ad litem is appointed for the child. (NCJFCJ Child Abuse and Neglect Cases:
Representation as a Critical Component of Effective Practice, by Dobbin, Gatowski and Johns,
1998.)
12. State Standards: We recommend that States adopt enforceable standards defining
the duties of the child's attorney.
Commentary
State standards should clearly define the duties of the child's attorney. Objective
standards make it easier forjudges and other review bodies to assess the lawyers' performance
on behalf of a client. If the lawyer misses deadlines, or does not have sufficient contact with
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page VII- 1 2
clients, judges or another supervising authority can remove these individuals from the list of
approved representatives.
The role of the child's attorney is unique in American jurisprudence and not well defined
in law or tradition. A lawyer representing a child has a client who may or may not be competent
and who may be competent for some decisions but not for others. There is little guidance for the
lawyer as to how he or she should fulfill the role compared to the better-developed law and
ethical obligations governing lawyers as representatives of competent adults or corporations.
Consequently, these Guidelines provide more detail as to the child's attorney than for parent and
agency attorneys. The other two parties are equally important, but the duties of their counsel can
rest more easily on existing law, professional standards, and tradition.
State standards should define the basic obligations and required actions of the child's
attorney in accordance with the ABA Standards of Practice for Lawyers Who Represent
Children. Standards addressing how the lawyer identifies the goals of advocacy, i.e., whether the
lawyer represents the child's best interests or expressed wishes, are discussed in Guideline 15,
Options A and B.
No matter how the goals of advocacy are identified, however, the attorney should elicit
the child's preferences in a developmentally appropriate maimer, advise the child, and provide
guidance. The child's attorney should communicate the child's wishes and preferences to the
court. Even if a child is not competent to direct the attorney and even if the role of the attorney is
defined as other than purely client directed (see Guidelines 15A and 15B), the wishes and
preferences are always relevant and should be communicated to the court unless limited by
privilege. The lawyer also has a duty to explain to the child in a developmentally appropriate
way information that will help the child have maximum input in determination of the particular
position at issue. According to the child's ability to understand, the lawyer should inform the
child of the relevant facts and applicable laws and the ramifications of taking various positions,
which may include the impact of such decisions on other family members or on future legal
proceedings.
Recommended from the ABA Standards.
The portions of the ABA Standards governing basic obligations and required action are:
B-1. Basic Obligations. The child's attorney should:
( 1 ) Obtain copies of all pleadings and relevant notices;
(2) Participate in depositions, negotiations, discovery, pretrial conferences, and hearings;
(3) Inform other parties and their representatives that he or she is representing the child and
expects reasonable notification prior to case conferences, changes of placement, and other changes of
circumstances affecting the child and the child's family;
(4) Attempt to reduce case delays and ensure that the court recognizes the need to speedily
promote permanency for the child;
(5) Counsel the child concerning the subject matter of the litigation, the child's rights, the court
system, the proceedings, the lawyer's role, and what to expect in the legal process;
(6) Develop a theory and strategy of the case to implement at hearings, including factual and
legal issues; and
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page VII- 1 3
(7) Identify appropriate family and professional resources for the child.
C. Actions to be taken.
C- 1 . Meet With Child. Establishing and maintaining a relationship with a child is the foundation of
representation. Therefore, irrespective of the child's age, the child's attorney should visit with the child
prior to court hearings and when apprised of emergencies or significant events impacting on the child.
C-2. Investigate. To support the client's position, the child's attorney should conduct thorough, continuing,
and independent investigations and discovery that may include, but should not be limited to:
(1) Reviewing the child's social services, psychiatric, psychological, drug and alcohol, medical,
law enforcement, school, and other records relevant to the case;
(2) Reviewing the court files of the child and siblings, case-related records of the social service
agency and other service providers;
(3) Contacting lawyers for other parties and nonlawyer guardians ad litem or court-appointed
special advocates (CASA) for background information;
(4) Contacting and meeting with the parents/legal guardians/caretakers of the child, with
permission of their lawyer;
(5) Obtaining necessary authorizations for the release of information;
(6) Interviewing individuals involved with the child, including school personnel, child welfare
case workers, foster parents and other caretakers, neighbors, relatives, school personnel, coaches,
clergy, mental health professionals, physicians, law enforcement officers, and other potential
witnesses.
(7) Reviewing relevant photographs, video or audio tapes and other evidence; and
(8) Attending treatment, placement administrative hearings, and other proceedings involving
legal issues, and school case conferences or staffing concerning the child as needed.
C-3. File Pleadings. The child's attorney should file petitions, motions, responses or objections as necessary
to represent the child. Relief requested may include, but is not limited to:
( 1 ) A mental or physical examination of a party or the child;
(2) A parenting, custody or visitation evaluation;
(3) An increase, decrease, or termination of contact or visitation;
(4) Restraining or enjoining a change of placement;
(5) Contempt for non-compliance with a court order;
(6) Termination of the parent-child relationship;
(7) Child support;
(8) A protective order concerning the child's privileged communications or tangible or intangible
property;
(9) Requesting services for child or family; and
(10) Dismissal of petitions or motions.
C-4. Request Services. [Consistent with the child's wishes**], the child's attorney should seek appropriate
services (by court order if necessary) to access entitlements, to protect the child's interests and to
implement a service plan. These services may include, but not be limited to:
(1) Family preservation-related prevention or reunification services;
(2) Sibling and family visitation;
(3) Child support;
(4) Domestic violence prevention, intervention, and treatment;
(5) Medical and mental health care;
(6) Drug and alcohol treatment;
(7) Parenting education;
(8) Semi-independent and independent living services;
(9) Long-term foster care;
( 1 0) Termination of parental rights action;
(11) Adoption services;
(12) Education;
(13) Recreation or social services; and
(14) Housing.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page VII-I4
C-5. Child With Special Needs. Consistent with the child's wishes, the child's attorney should assure that a
child with special needs receives appropriate services to address the physical, mental, or
developmental disabilities. These services may include, but should not be limited to:
( 1 ) Special education and related services;
(2) Supplemental securing income (SSI) to help support needed services;
(3) Therapeutic foster or group home care; and
(4) Residential in-patient and out-patient psychiatric treatment.
C-6. Negotiate Settlements. The child's attorney should participate in settlement negotiations to seek
expeditious resolution of the case, keeping in mind the effect of continuances and delays on the child.
The child's attorney should use suitable mediation resources.
D- 1 . Court Appearances
The child's attorney should attend all hearings and participate in all telephone or other conferences
with the court unless a particular hearing involves issues completely unrelated to the child.
D-2. Client Explanation
The child's attorney should explain to the client, in a developmentally appropriate manner, what is
expected to happen before, during and after each hearing.
D-3. Motions and Objections
The child's attorney should make appropriate motions, including motions in limine and evidentiary
objections, to advance the child's position at trial or during other hearings. If necessary, the child's
attorney should file briefs in support of evidentiary issues. Further, during all hearings, the child's
attorney should preserve legal issues for appeal, as appropriate.
D-4. Presentation of Evidence
The child's attorney should present and cross examine wimesses, offer exhibits, and provide
independent evidence as necessary.
D-5. Child at Hearing
In most circumstances, the child should be present at significant court hearings, regardless of whether
the child will testify.
D-6. Whether Child Should Testify
The child's attorney should decide whether to call the child as a witness. The decision should include
consideration of the child's need or desire to testify, any repercussions of testifying, the necessity of
the child's direct testimony, the availability of other evidence or hearsay exceptions which may
substitute for direct testimony by the child, and the child's developmental ability to provide direct
testimony and withstand possible cross-examination. Ultimately, the child's attorney is bound by the
child's direction concerning testifying.
D-7. Child Witness
The child's attorney should prepare the child to testify. This should include familiarizing the child
with the courtroom, court procedures, and what to expect during direct and cross-examination and
ensuring that testifying will cause minimum harm to the child.
D-8. Questioning the Child
The child's attorney should seek to ensure that questions to the child are phrased in a syntactically and
linguistically appropriate manner.
D-9. Challenges to Child's Testimony/Statements
The child's competency to testify, or the reliability of the child's testimony or out-of-court statements,
may be called into question. The child's attorney should be familiar with the current law and empirical
knowledge about children's competency, memory, and suggestibility and, where appropriate, attempt
to establish the competency and reliability of the child.
D-10. Jury Selection
In those States in which a jury trial is possible, the child's attorney should participate injury selection
and drafting jury instructions.
D-11. Conclusion of Hearing
If appropriate, the child's attorney should make a closing argument, and provide proposed findings of
fact and conclusions of law. The child's attorney should ensure that a written order is entered.
D-12. Expanded Scope of Representation
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page VII- 1 5
The child's attorney may request authority from the court to pursue issues on behalf of the child,
administratively or judicially, even if those issues do not specifically arise from the court appointment.
For example:
(l)Child support;
(2)Delinquency or status offender matters;
(3)SSI and other public benefits;
(4)Custody;
(5)Guardianship;
(6)Patemity;
(7)Personal injury;
(8)School/education issues, especially for a child with disabilities;
(9)Mental health proceedings;
(lO)Termination of parental rights; and
(1 l)Adoption.
D- 1 3 . Obligations After Disposition
The child's attorney should seek to ensure continued representation of the child at all further hearings,
including at administrative or judicial actions that result in changes to the child's placement or
services, so long as the court maintains its jurisdiction.
Post Hearing
E-1. Review of Court's Order
The child's attorney should review all written orders to ensure that they conform with the court's verbal
orders and statutorily required findings and notices.
E-2. Communicate Order to Child
The child's attorney should discuss the order and its consequences with the child.
E-3. Implementation
The child's attorney should monitor the implementation of the court's orders and communicate to the
responsible agency and, if necessary, the court, any non-compliance.
Appeal
F- 1 . Decision to Appeal
The child's attorney should consider and discuss with the child, as developmentally appropriate, the
possibility of an appeal. If after such consultation, the child wishes to appeal the order, and the appeal
has merit, the lawyer should take all steps necessary to perfect the appeal and seek appropriate
temporary orders or extraordinary writs necessary to protect the interests of the child during the
pendency of the appeal.
F-2. Withdrawal
If the child's attorney determines that an appeal would be frivolous or that he or she lacks the
necessary experience or expertise to handle the appeal, the lawyer should notify the court and seek to
be discharged or replaced.
F-3. Participation in Appeal
The child's attorney should participate in an appeal filed by another party unless discharged.
F-4. Conclusion of Appeal
When the decision is received, the child's attorney should explain the outcome of the case to the child.
End of Representation
F-5. Cessation of Representation
The child's attorney should discuss the end of the legal representation and determine what contacts, if
any, the child's attorney and the child will continue to have.
From: American Bar Association Standards of Practice for Lawyers Who Represent Children in Abuse and Neglect
Cases.
The appointment of the lawyer should continue until permanency is secured. If a lawyer
represents more than one sibling. State standards should require the lawyer to withdraw if there is
a conflict of interest. Training should help lawyers identify potential conflicts of interest (e.g..
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page VII- 1 6
when the agency is unlikely to find an adoptive home for one child, but not for another). They
will then be prepared to inform the court when such conflicts arise. If only one sibling is before
the court, the attorney should consider some type of involvement on behalf of the other children.
It may be appropriate for the lawyer to seek appointment for the other child or children.
The attorney should give the child latitude not to make a decision about the matters
before the court, especially in cases where the child's decision-making ability is not clear. Many
children do not wish to decide certain issues, so the child should be helped to understand the
child can communicate his or her wishes but the court will make the decision.
13. Child as Petitioner: We recommend that the child, with the assistance of her or his
attorney have the right to petition for termination of parental rights, adoption, or
any other permanent placement.
Commentary
Many States already permit the child, through his or her attorney, to file for termination
of parental rights or for another permanent placement such as guardianship. State law could
create this right as another means to encourage permanent placements for children. These
Guidelines call for the child to be involved in his or her own permanent planning and for
aggressive advocacy on behalf of the best interests of the child. Federal legislation requires a
permanency hearing for a child after a year in foster care. Even when it is in the best interests of
the child to do so, there are occasions when the child welfare agency may not file for termination
or other permanent plan on a timely basis. Often it is due to the press of other cases and duties.
This legislative provision would provide important alternatives for cases that should be brought
where the agency is not proceeding in a timely fashion.
GUIDELINES FOR THE ROLE OF THE CHILD'S WISHES IN DETERMINING THE
ADVOCATE'S GOALS
14. State Law Guidance Required: We recommend that States articulate clear standards
regarding the role of the child's lawyer and communicate those standards to the
lawyers, the courts and the clients.
Commentary
There is considerable ongoing discussion among lawyers, judges, and other children's
advocates about the appropriate role for a lawyer to assume when representing child clients. In
particular, a range of views exists about the extent to which lawyers should take direction firom
their child clients. For the most part. States have provided inadequate guidance to lawyers for
children about their proper role and, as a result, each lawyer makes her or his own decision. This
ad hoc approach produces conftision among clients, other involved individuals, and the courts. It
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page VII- 1 7
also has the effect, overall, of reducing the quality of legal representation. In order for children to
be well served by the court process, it is essential that each State clearly articulate the role the
child's lawyer is expected to play.
While development of specific standards necessarily falls to each State, the Expert Work
Group offers the following overview of the subject. At one end of the spectrum of the discussion
are those who argue that lawyers should take direction from their clients as soon as they are old
enough to articulate any position. At the other end of the spectrum are those who argue that the
lawyer should advocate whatever he or she thinks is in the clients' best interest, regardless of the
clients' views, until the client turns 18. Most viewpoints fall somewhere between these two
extremes.
The NCJFCJ 1997 survey found that, of the 40 States that appoint a lawyer for the child,
30 expect the advocate to serve a dual role of both attorney representing the child's wishes and as
best interests advocate. (NCJFCJ, Representation, page 42.) The dual role requirements are
perceived as contradictory and create great confusion for the lawyers. (NCJFCJ p. 57.) Both the
ABA Standards and the Fordham Recommendations take strong positions against this dual role
with no authoritative guidance from the legislature or courts. These Guidelines also reject the
dual role approach and recommend that State lawmakers provide standards to guide attorneys in
this role.
The vast majority of legal scholars who have addressed this issue recommend that a
lawyer should take direction from her or his child client (only) if the child is determined to have
developed the cognitive capacity to engage in reasoned decision-making. (See, for example,
Fordham Law Review Volume 64, March 1996.) These scholars disagree, however, about how
that capacity should be assessed. Some propose a bright-line age rule and some propose a case-
by-case assessment by the lawyer or by the appointing judge). Supporters of this approach focus
on the following arguments. The adversary system produces its best results when all positions
are argued forcefully before the court. Lawyers are ill-trained to make best interest decisions and
well-trained to serve as zealous advocates for their clients' positions. Children's judgments are
not consistently worse than those of adults, particularly when all options presented are fraught
with risks, and, children benefit from being given an opportunity to be heard and taken seriously
in the courts.
Those who favor adopting a best interest approach for all but the oldest children seek to
avoid imposing the adult-like responsibility of decision-making on children, and to ensure that
the court has the benefit of all relevant information before making its decisions. The burden of
having to take a position and instruct the attorney to influence judicial decision-making may be
inappropriately placed on the child victim. This approach places the child, who simply by virtue
of being in a court proceeding is vulnerable, in a position which potentially elevates distress due
to feelings of guilt, fear, divided loyalty, etc. There is real danger of re- victimization of which
we must be aware and cautious. The impact on self-esteem, particularly in younger children, can
be damaging. From a developmental perspective, children's cognitive perception of the world is
quite egocentric until age eight or so. The child sees self as the center and cause of all that
happens, which — when traumatic events such as severe sexual and physical abuse are occurring,
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page VII- 1 8
being removed from one's home, etc. — is terrifying. Telling the child to take on even more
responsibility and "direct" his or her adult attorney may be overwhelming and traumatic for the
child and exacerbate feelings of blame.
Many would argue that children are under tremendous pressure to misidentify and/or
misarticulate their own interests because of pressure from their families, the court process, and
the circumstances leading to the court process. (See Fordham Law Review Vol 64, March 1996.)
Haralambie notes that, "Children's wishes may be based on threats, bribes, and other
questionable bases..." Buss interprets Perry as "suggesting that children's communications with
their lawyers are hampered by, among other things, their difficulty in dealing with the emotional
and social pressure connected with the proceeding, their feelings of guilt, their difficulty
understanding and framing responses to lawyer's questions, and their lack of understanding of
court proceedings." Melton notes that, "The necessity of making choices can be anxiety
provoking for children." (See pp. 1702-3.)
Many would argue that the lawyer does not have to be the expert in all disciplines in
order to determine the best interests of the child. Rather we should strongly encourage
multidisciplinary training and collaboration, and advocate for legal utilization of the expertise of
other professionals in providing assessments, determining competence, and making
recommendations to the court. The bottom line is that the child should be heard and considered,
but should also feel safe and protected by a caring, adult attorney who will represent what is best
for the child. In this situation, the child will not feel burdened by additional responsibilities that
are beyond his or her emotional capacity.
To some extent, these differences in approach, as stark as they may appear when
presented side by side, are more apparent than real. Under either standard, the child's wishes are
to be elicited and taken seriously, and under either standard the lawyer is expected to play a
counseling role — advising the client of the risks and benefits of various options and, particularly,
the likely consequences of the client's expressed choices. This discussion and counseling will, in
many cases, produce agreement between client and lawyer about what they perceive to be in the
client's best interests.
In some fi-action of cases, however, the lawyer and the child client will not agree on what
the child's interests are. In those cases, the role the lawyer assumes will have a significant effect
on how the lawyer represents her or his client. Both because such cases will arise, and because
lawyers need to be able to explain their role, from the outset of representation in a manner that
can be understood and relied upon by their clients, the development and articulation of standards
of representation is critical.
The Guideline above tries to avoid a false dichotomy between wishes and best interests
and focuses instead on duties of the child's lawyer, regardless of who (or how) the ultimate
advocacy goals of the lawyer are determined. The wishes vs. best interests debate has received
much attention in academic and policy circles that hopefully will be helpful to judges and
practitioners. The Expert Work Group has not reached a consensus on this issue and instead
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page VII- 1 9
offers these two options to State legislatures: 15A - client-directed, and 15B - a best interests
model.
15A. OPTION A — Client Directed: We recommend that the child's attorney
representation be client directed, that is, the child's attorney shall in all
circumstances fulfill the same duties of zealous advocacy, loyalty, confidentiality,
and competent representation as are due an adult client. The child's attorney
should represent the child's expressed preferences and follow the child's direction
throughout the course of litigation. The client directed approach should be the
attorney's default position and any deviation from that approach should be
narrowly construed and carefully justified as follows:
a. If a child lacks capacity to articulate a preference, the attorney should
determine and advocate the child's legal interests.
b. If a child does not express a preference to the attorney, the child advocate
should make a good faith effort to determine the child's preference from
other sources and advocate those preferences.
c. If the child wishes not to take a position, the lawyer shall respect the child's
wishes and, in his or her best judgment, either take no position or advocate
for the child's legal interests.
d. If the child's attorney not only believes that the child's expressed preferences
are contrary to his/her opinion of the child's best interests, but also could
place the child at considerable risk of severe injury or harm, the lawyer may
request appointment of a separate guardian ad litem. In this case, the
attorney would continue to represent the child's expressed preference, unless
the child's position is prohibited by law or without any factual foundation.
The child's attorney shall not reveal the basis of the request for appointment
of a guardian ad litem that would compromise the child's position.
Commentary
This option is consistent with the position of the ABA Standards and the
Recommendation of the December 1995 Fordham Conference on Ethical Issues in the Legal
Representation of Children. Starting with the premise of child-guided representation and
consistent with Rule 1.14 of the Model Rule of Professional Conduct applicable to attorney's
relations with all clients, the option requires that lawyers assume the traditional client-lawyer
relationship, to the extent this relationship is reasonably possible.
If an individual child is able to understand the particular issues at stake, and to form and
communicate a viewpoint to the attorney, the child should be treated as a client under the code of
professional responsibility, i.e., should give binding direction to the attorney. As the matter
proceeds, a child, who previously lacked maturity, might gain the maturity to direct the attorney.
In addition, a child might be a "client" as to certain questions but not others.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page VII-20
Age alone should not be considered a disability to provide instruction to an attorney on a
particular issue. For example, the child who has experienced familial sexual abuse may not be
able to express an opinion on whether or not to return home, but may be able to identify which of
two other placement alternatives is best.
Where the child cannot or does not express a preference, the attorney is to advocate the
legal interests of the child, that is interests of the child as set out in legislation, case law,
standards of attorney conduct, and applicable policy. The legal interests are in contrast to an
imposition of the lawyer's personal views of the child's interests unguided by any outside
authority.
CAPTA requires appointment of a guardian ad litem representing the child's best
interests who need not be an attorney. States could adopt the recommendations of 1 5 A and
comply with CAPTA in two ways. First, States are free to appoint a guardian ad litem, perhaps a
volunteer CASA, in addition to an attorney for the child as described in Guideline 1 5A. This is
the preferred approach. Second, the States may appoint the attorney for the child as described in
15A in fulfillment of the CAPTA requirement. This provision is consistent with the CAPTA
requirement because advocating the child's wishes and preference could be seen as in the child's
best interests, serving the child's best interests, and helping the court to better arrive at overall
decisions that are best for the child. The two approaches are not mutually exclusive as a court
could appoint a single attorney for some children, but appoint two representatives for others, for
example where the child is younger or where there are not sufficient CASAs to serve every case.
15B. OPTION BSubstituted Judgment: We recommend that the child's lawyer shall
represent the best interests of the child as identified by the child's lawyer. When a
mature child's view of his or her interests conflicts with those of the child's lawyer,
however, the lawyer shall communicate the child's position to the court and ask the
court to appoint legal counsel who shall appear in addition to the child's lawyer.
Commentary
Under this option, the lawyer serves as the guardian ad litem of the child representing the
best interests of the child. The option is clearly consistent with the requirements of CAPTA for a
guardian ad litem representing the best interests of the child. If, after discussion between the
child and the lawyer-guardian ad litem, the child's wishes remain inconsistent with the guardian
ad litem's determination of best interests, the guardian ad litem shall communicate the child's
position to the court and ask the court to appoint legal counsel to represent the child. "Legal
counsel," under this model, means an attorney who serves as the legal advocate for the child.
The child's legal counsel serves in a traditional attorney-client relationship with the child and
owes the same duties of undivided loyalty, confidentiality, and zealous representation of the
child's expressed wishes as the attorney would to an adult client. (See Hartmann, Crafting an
Advocate for a Child, 3\ Mich J. L. Ref 237, Fall 1997.)
The court would appoint a legal counsel for the child if it deems it appropriate
considering the age and maturity of the child and the nature of the differences between the child
Guidelines for Public Policy and Slate Legislation Governing Permanence for Children Page VII-21
and the child's attorney. In most cases the legal counsel would serve in addition to the guardian
ad litem attorney but the Expert Work Group agreed the court would rarely have to appoint more
than one representative for the child. In any event, the child's preferences are always
communicated to the court. As guardian ad litem, the attorney-client privilege would remain
intact. Volunteer child advocates, i.e., CASAs, are very helpful advocates for the child's best
interests and should often be appointed in addition to the child's lawyer with the two acting as a
team.
Legislation adopting this approach passed both houses of the Michigan Legislature by
unanimous vote in December 1998 and has subsequently been signed into law. (See MCL
7I2A.13a, MCL 712A.17c as amended.)
GUIDELINES FOR COURT APPOINTED SPECIAL ADVOCATES
16. Establish CASA Programs: We recommend that States establish and support Court
Appointed Special Advocate (CASA) or volunteer Guardian Ad Litem programs in
every court jurisdiction in pursuit of the goal of a CASA volunteer for all children
who are the subjects of child protection court proceedings.
Commentary
CASAs are screened, trained, and professionally supervised lay volunteers who advocate
for the best interests of abused and neglected children, primarily in dependency proceedings.
The volunteer's role is distinct from, yet complementary to, that of lawyers who represent
children. Although they do not provide legal services, CASA volunteers conduct detailed fact-
finding investigations, get to know the child, monitor the child's progress through the court
system, help to broker services in the community, and submit reports to the court which include
recommendations concerning services and placement for the child.
Consistent with the requirements of CAPTA (see commentary to section 1 1 above),
CASAs may act as guardian ad litems. However, the standards governing operation of these
programs do not permit the volunteers to provide legal advice, and legal assistance should be
available to all such volunteers.
All CASA programs and volunteer guardian ad litem programs operating as part of the
CASA network must comply with standards issued by the National Court Appointed Special
Advocate Association. In addition, 26 States have established additional State standards.
Among the requirements are low caseloads (not more than one or two cases per volunteer);
careful selection and screening; and comprehensive and ongoing training. In order to assure
quality volunteer representation, adequate resources must be available to such programs to meet
these standards.
Guidelines for Public Policy and Stale Legislation Governing Permanence for Children Page VII-22
State and judicial support is also essential to the success of a CASA or volunteer guardian
ad litem. The National Council of Juvenile and Family Court Judges has long endorsed CASA
programs and supported their expansion.
To implement this recommendation for volunteer CASAs for children. States may adopt
any of several CASA program models. One of the strongest is the use of attorney/volunteer
teams. States can obtain advice and assistance on program development from the National Court
Appointed Special Advocate Association and from statewide CASA organizations in many
States.
Regardless of the program model adopted, the involvement of a trained volunteer can
provide an important additional source of detailed information about the child for attorneys,
caseworkers, and, ultimately, for the court. Independent volunteer advocacy, in combination
with competent legal counsel, provides an opportunity for meaningful community involvement
on behalf of abused and neglected children in the courts.
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page VII-23
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Nauer, K. "Guilty Until Proven Irmocent." City Limits. November 1994, pp. 20, 22.
Peters, J.K. Representing Children in Child Protective Proceedings: Ethical and Practical
Dimensions. Charlottesville, VA: LEXIS Law Publishing. 1997.
Ratterman, D. "Guidelines for New Child Welfare Attorneys." ABA Juvenile and Child Welfare
Law Reporter, 10, July 1991, 78-79.
Segal, E.C.; Kimmich, M.H.; and Salus, M.K. Evaluating and Improving Child Welfare Agency
Legal Representation: Self-Assessment Instrument and Commentary. Washington, DC: National
Legal Resource Center for Child Advocacy and Protection, American Bar Association, 1988, 58-
61.
Shephard, R.E., and England S.S. "1 Know the Child is My Client, But Who Am 1?" Fordham
Law Review 6A: 1917, 1949(1996).
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page VII-25
Skarin, G. D. "The Role of the Child Protective Agency's Attorney in Family Court." Practicing
Law Institute Criminal Law and Urban Problems 171: 431-468, 459-60 (March 1995).
Skarin, G.D. 'The Role of the Child Welfare Attorney in Family Court Child Protective
Proceedings." Practicing Law Institute: Litigation and Administration Practice Course
Handbook. PLI Order No. C4-4220, March 1998, 179 PLI/Crim 673;
Weinstein, J. "And Never the Twain Shall Meet: The Best Interests of Children and the
Adversary System." University of Miami Law Review 52: 159 (October 1997).
Wolff, J., and Grimm, W. "Representing Parents in Termination of Parental Rights
Proceedings." Clearinghouse Review 23: 849 (November 1989).
Guidelines for Public Policy and State Legislation Governing Permanence for Children Page VII-26
APPENDIX
APPENDIX
Organizational Resources
Adoption Exchange Association
Dr. Dixie Davis
820 South Monaco #263
Denver. CO 80224
Phone: 303-755-2806
American Academy of Adoption Attorneys
P.O. Box 33053
Washington, DC 20033-0053
Phone: 202-832-2222
Web: wwAv.adoptionattornevs.com
American Adoption Congress
Jane Nast
1000 Connecticut Ave., NW, Suite 9
Washington, DC 20036
Phone: 202-483-3399
Fax: 973-267-3356
Web: \v\v\v.american-adoption-con".org
American Bar Association
Center on Children and the Law
740 15th Street. N.W.
Washington, DC 20005
Phone:202-662-1720
Fax: 202-662-1755
Web: www.abanet.ora-'child/
E-mail: ctrchildla\v tj abanet.org
American Humane Association
Children's Division
63 Inverness Drive East
Englewood, CO80112-5117
Phone: 800-227-4645
Phone: 303-792-9900
Fax: 303-792-5333
Web: \v\\"\v. americanhumane.org
E-mail: children <:7'americanhumane.org
Appendix to Guidelines for Public Policy and State Legislation Governing Permanence for Children Page
American Public Human Services Association
(Formerly the American Public Welfare Association)
810 First Street, N.E., Suite 500
Washington, DC 20002-4267
Phone: 202-682-0100
Fax: 202-289-6555
Web: www.aphsa.org
Association of Family and Conciliation Courts Mediation Committee
Mediation and Investigative Services
Attn: Jan Shaw
P.O. Box 14169
Orange, CA 92863
Phone: 714-935-6459
Fax: 714-935-6545
E-mail : ishaw(a),superior.co. orange. ca.us
Center for Social Services Research
University of California, Berkeley
16HavilandHall
Berkeley, CA 94720-7400
Phone:510-642-1899
Fax: 510-642-1895
Web: http://hav54.socwel.berkeiev.edu/cssr
E-mail : cssria!uclink. berkeiev.edu
Center for Law & Social Policy
1616 P Street, NW, Suite 150
Washington, DC 20036
Phone:202-328-5140
Fax: 202-328-5195/5197
Web: www.clasp.org
Center for the Study of Social Policy
1250 Eye Street, NW, Suite 503
Washington, DC 20005
Phone:202-371-1565
Fax: 202-371-1472
Web: www. cssp.org
Child Welfare League of America
440 First Street, N.W., 3rd Fl.
Washington, DC 20001
Phone: 202-638-2952
Fax: 202-638-4004
Web: www.cwla.org
E-mail: advocate(a).cwla.org
Appendix to Guidelines for Public Policy and State Legislation Governing Permanence for Children Page 2
Child Welfare Institute
1349 W. Peachtree Street, NW, Suite 900
Atlanta, GA 30309
Phone:404-876-1934
Fax: 404-876-7949
Web: www.gocwi.org
Children and Family Justice Center
Northwestern University Legal Clinic
357 East Chicago Avenue
Chicago, IL 6061 1-3069
Phone:312-503-8576
Fax: 312-503-0953
Children's Defense Fund
Child Welfare and Mental Health Division
25 E Street, NW
Washington, DC 20001
Phone: 202-628-8787
Fax: 202-662-3510
Web: www.childrensdefense.org
Children's Rights, Inc.
404 Park Avenue South
New York, NY 10016
Phone:212-683-2210
Fax: 212-683-4015
Florida State GAL Program
Patricia Badland
State Guardian Ad Litem Program
State Court Administrator's Office
Supreme Court Building
500 South Duvall Street
Tallahassee, FL 32399
Phone: 850-487-1414
Fax: 850-414-1505
Judge David L. Bazelon Center for Mental Health Law
1101 15th Street, N.W., Suite 1212
Washington, DC 20005-5002
Phone: 202-467-5730
Fax: 202-223-0409
TDD: 202-467-4232
Web: wAvw. bazelon. ora
E-mail: bazelon(a'nicom.com
Appendix to Guidelines for Public Policy and Stale Legislation Governing Permanence for Children Page 3
Juvenile Law Center
Robert Schwartz, Director
801 Arch Street, Suite 610
Philadelphia, PA 19107
Phone:215-625-0551
Fax: 215-625-9589
E-mail : rschwartz@ilc.org
Legal Options for Permanency
Dave Thomas Foundation for Adoption
P.O. Box 7164
Dublin, OH 43017
Phone: 614-764-8454
Memorial University' of Newfoundland
School of Social Work, St. John's College
Family-Group Listserv
Gale Burford, Ph.D.
Phone: 709-737-8161/8165
Fax: 709-737-2408
National Adoption Information Clearinghouse
P.O.Box 1182
Washington. DC 20013-1 182
Phone: 888-251-0075
Phone: 703-352-3488
Fax: 703-385-3206
Web: wvwv.calib.com/naic
National Association of Child Advocates
1522 K Street, N.W., Suite 600
Washington, DC 20005
Phone: 202-289-0777
Fax: 202-289-0776
Web: www. childadvocacv.org
E-mail:naca@childadvocacv.org
Appendix to Guidelines for Public Policy and State Legislation Governing Permanence for Children Page 4
National Association of Counsel for Children
Imhoff Pavilion
1 825 Marion Street, Suite 340
Denver, CO 80218
Phone: 888-828-6222
Phone: 303-864-5320
Fax: 303-864-5351
Web: www.naccchildlaw.org
E-mail: Advocate(a)NACCchildlaw.org
National Association of Foster Care Reviewers
Two Midtown Plaza
1349 W. Peachtree St., NE, Ste. 900
Atlanta, GA 30309-2956
Phone: 404-876-3393
National Center for Juvenile Justice
710 Fifth Avenue, 3rd Fl.
Pittsburgh, PA 15219-3000
Phone: 412-227-6950
Fax: 412-227-6955
Web: wwv>'.ncii.orR
E-mail: ncii@,nauticom.net
National Center for Prosecution of Child Abuse
99 Canal Center Plaza, Suite 510
Alexandria, VA 22314
Phone: 703-739-0321
Fax: 703-836-3195
Web: www.ndaa-apri.org
National Center for State Courts
300 Newport Avenue
Williamsburg, VA 23 187
Phone: 800-877-1233
Phone: 757-253-2000
Fax: 757-220-0449
Web: www.ncsc.dni.us/
E-mail: gflangofa!athena.ncsc.dni.us
Appendix to Guidelines for Public Policy and State Legislation Governing Permanence for Children Page 5
National Center for Youth Law
1 14 Sansome Street, Suite 900
San Francisco, CA 94104-3820
Phone:415-543-3307
Fax: 415-956-9024
Web: www.vouthlaw.org
E-mail : martha(a),vouthlaw. org
National Child Welfare Resource Center for Organizational Improvement
Edmund S. Muskie School of Public Service
University of Southern Maine
One Post Office Square, 400 Congress Street
P.O.Box 15010
Portland, ME 041 12
Phone: 800-435-7543
Phone:207-780-5810
Fax: 207-780-5817
Web: www.muskie.usm.maine.edu/helpkids
E-maik patnfg'.usm. maine.edu
National Clearinghouse on Child Abuse and Neglect Information
330 C Street, S.W.
Washington, DC 20447
Phone: 800-394-3366
Phone: 703-385-7565
Fax: 703-385-3206
Web: www.calib.com/nccanch
E-mail: nccanch@.calib.com
National Conference of Commissioners on Uniform State Laws (NCCUSL)
21 1 E. Ontario Street, Suite 1300
Chicago, IL 60611
Phone:312-915-0195
Fax: 312-915-0187
E-mail: nccusira),nccusl.org
National Conference of State Legislatures
444 North Capitol Street, NW
Suite 515
Washington, DC 20001
Phone: 202-624-5400
Fax: 202-737-1069
Web: www.ncsl.org
E-mail: Sheri.Steisel@NCSL.QRG
Appendix to Guidelines for Public Policy and State Legislation Governing Permanence for Children Page 6
National Council for Adoption
1930 17th Street, N.W.
Washington, DC 20009
Phone:202-328-1200
Fax: 202-332-0935
Web: www.ncfa-usa.org
E-mail: ncfadc(g),ibm.net
National Council of Juvenile and Family Court Judges
Permanency Planning for Children Department
P.O. Box 8970
Reno, NV 89507
Phone: 702-327-5300
Fax: 702-327-5306
E-mail: pppfajpppnci fci .org
National Court Appointed Special Advocate Association
100 West Harrison, Suite 500
North Tower
Seattle, WA 981 19
Phone: 800-628-3233
Web: www.nationalcasa.org/
National Indian Child Welfare Association
361 1 Southwest Hood Street, Suite 201
Portland, OR 97201
Phone: 503-222-4044
Fax: 503-222-4007
Web: www.nicwa.org
E-mail: info@,nicwa.org
National Legal Aid and Defender Association
1625 K Street, N.W., Suite 800
Washington, DC 20006-1604
Phone: 202-452-0620
Fax: 202-872-1031
Web: www.nlada.org
E-mail: info@nlada.org
Appendix to Guidelines for Public Policy and State Legislation Governing Permanence for Children Page 7
National Resource Center for Family Centered Practice
University of Iowa
School of Social Work
112 North Hall
Iowa City, lA 52242-1223
Phone:319-335-2200
Phone:319-335-2204
Web: www.uiowa.edu/~nrcfcp/nweb/index.shtml
E-mail : iohn-zalenskiteuiowa.edu
National Resource Center for Permanency Planning
Hunter College School of Social Work
129 East 79th Street, Room 801
New York, NY 10021
Phone:212-452-7053
Fax: 212-452-7051
North American Council on Adoptable Children
970 Raymond Avenue, Suite 106
St. Paul, MN 55114-1149
Phone: 612-644-3036
Fax: 612-644-9848
Web: www.cvfc.umn.edu/adoptinfo/nacac.html
F--mail: nacac@,aol.com
North Carolina State Guardian Ad Litem Program
State Court Administrator's Office
Supreme Court Building
P.O. Box 2448
Raleigh, NC 27602
Phone:919-662-4386
Fax: 919-661-4862
Web: wvAv.aoc. state. nc. us/ www/public/aoc/GALhome.html
Policy Studies Inc.
999 1 8th Street, Suite 900
Denver, CO 80202
Phone: 303-863-0900
Fax: 303-295-0244
Web: www.policv-studies.com
E-mail : info@policv-studies.com
Appendix to Guidelines for Public Policy and State Legislation Governing Permanence for Children Page 8
University of Michigan Child Welfare Law Program
University of Michigan Law School
313 Legal Research Building
Ann Arbor, MI 48109-1215
Phone:313-763-5598
Fax: 313-763-5899
Web: w^vw.law.umich.edu/childlaw/
E-mail: cindvkelia)umich.edu
Voice for ADOPTION
Maureen Heffeman
P.O. 77496
Washington, DC 20013-77496
Phone: 202-244-0926
Welfare Law Center
(Formerly the Center on Social Welfare Policy and Law)
275 Seventh Ave., Suite 1205
New York, NY 10001
Phone: 212-633-6967
Fax: 212-633-6371
Web: www . we 1 fare 1 aw. or g
E-mail: wlc@,welfarelaw.org
Appendix to Guidelines for Public Policy and Slate Legislation Governing Permanence for Children Page 9
" GOVERNMENT DOCUMENTS DEFT.
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